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Jury mulling police suit

Plaintiff requests $590,000, defense asks for dismissal

At press time Wednesday, a federal jury was mulling whether the Powell Police Department violated the constitutional rights of a city resident when they searched her and her husband’s home for drugs two years ago.

The case was handed to an eight-member jury just after 1 p.m., following 11 days of testimony and arguments in the U.S. District Court of Wyoming in Cheyenne in a lawsuit brought by the woman, Tricia Wachsmuth.

“We’ll see what happens,” said presiding District Court Judge Alan Johnson after the jury was released to deliberate.

As of 7 p.m. Wednesday, the jury was continuing its deliberations; as of early Thursday afternoon, the deliberations were still continuing.

Wachsmuth claims the officers used excessive force in seizing two marijuana plants from her and her husband Bret’s home on Feb. 24, 2009. She says the officers did not give her time to answer the door before ramming it, recklessly deployed a flashbang and used her as a human shield when searching her home’s basement.

Police say the information they had — of a marijuana grow, of loaded guns strategically placed around the house, and concerns of mental instability — justified a “dynamic entry” into the home; they deny using her as a human shield.

Though only two mature plants were recovered in the search, eight seedlings had been growing two days prior to the search. Both Wachsmuths pleaded guilty to marijuana-related misdemeanors.

Wachsmuth’s attorney, Jeff Gosman, said police made a mountain out of a molehill and asked the jury to award his client some $590,000 in his closing argument.

“These people, Bret and Tricia Wachsmuth, are not dopers,” said Gosman, referencing language police used to refer to the couple a few times in the trial. Gosman said the Wachsmuths were young adults who made a mistake, took responsibility and paid their price.

“That is more than you can say for the defendants. They have no remorse,” he said.

He said the only thing the police and city care about is whether they’d have to pay money. Gosman requested $500,000 as compensation for Wachsmuth’s claimed pain and suffering and $90,000 for her medical expenses over a 10 year period. He said that amount would send a message.

Officers said during the trial that they have nothing to be remorseful about.

Given the information the officers had going into the home, “this was not two kids sitting around smoking a little bit of marijuana,” said police attorney Misha Westby in her closing argument, saying police had information they were facing a “risky and potentially deadly combination of guns and drugs.”

Westby said the service of the search warrant wasn’t perfect, but said it was done in a “professional and responsible manner.”

She said police had been told by an informant that Bret Wachsmuth had 10 to 20 plants and he had loaded guns around the house, along with armor-piercing ammunition and a bullet-proof vest. The informant said Wachsmuth was possibly receiving prescription medications through the mail, was paranoid and, and he frequently looked out the windows for law enforcement.

Gosman argued the police should have given more weight to the fact that neither Bret nor Tricia Wachsmuth had a criminal history.

“There was no evidence that he (Bret) actually posed a threat to the officers,” Gosman said.

Powell Police Chief Tim Feathers and other officers said during the trial that criminal history is not necessarily the most important factor, citing the drugs, guns and potentially unstable residents.

“That (criminal history) is one piece of the puzzle,” said Westby. “And had the person record indicated they had been suspected in violent behavior, this would have been a no-knock warrant.”

Westby said Feathers ruled out serving the warrant in a “knock and talk” fashion because of the risks, and he didn’t want to involve Bret’s father, Division of Criminal Investigation special agent Tom Wachsmuth, because it potentially would compromise the investigation and put the agent in a difficult position.

Waiting would have given the Wachsmuths the ability to destroy the evidence, Westby said, because the informant told Officer Chad Miner he had already tipped off Bret Wachsmuth that police were coming.

After first speaking with the informant on the afternoon of Feb. 24, Miner consulted Lt. Dave Patterson of the Park County Sheriff’s office for his expertise on marijuana grow operations; Patterson said he believed the information wasn’t close to justifying a dynamic entry. He said it appeared other options had already been ruled out.

Patterson said Miner told him the rush was that “administration was on his ass to boot a door.” Miner disputed that, and testified he did not feel pressure from administration.

Miner said it was after Patterson left that he learned Bret Wachsmuth had been tipped off that police were coming.

Gosman suggested police actually didn’t know Wachsmuth had been given a heads up until after the search and noted that information was not in Miner’s application for a search warrant.

In his closing argument, Gosman painted the officers as having been dishonest on the stand and as having manipulated evidence.

As one example, Gosman alleged the officers had taken the two plants from the Wachsmuths’ home and then nurtured them under a grow light at the police station before taking follow-up photographs. That assertion was based on Bret’s claim that the plants appeared to have grown in later police photos; the officers denied doing anything to the plants other than storing them in evidence lockers.

Gosman also said Sgt. Roy Eckerdt made an “intentional deception” by telling the officers prior to the raid that he had seen a photo of Bret Wachsmuth posing in riot gear. Photos produced by Gosman showed photos of Bret’s brother Sean and a woman posing in such gear, not Bret.

Westby said it’s possible Eckerdt saw different photos and that there was no evidence the sergeant was lying.

As they approached the house that night to serve the search warrant, officers say Wachsmuth’s Chihuahua began barking and an individual — later determined to be Wachsmuth — looked out the window. Wachsmuth said she saw someone standing on her porch and then heard a loud bang and had officers in the home.

Wachsmuth has testified the dog did not bark.

The officers said being spotted made them hurry a little bit, as they were concerned about the home’s occupant(s) becoming armed. However, they said they still knocked and waited a reasonable amount of time before entering the home.

Wachsmuth has testified that the officers never knocked or announced their presence before breaking open the door.

However, all of the officers on the six-man entry team and the two officers who deployed the flashbang said they heard the knock and announcement of “Police, search warrant” and that there was a long enough wait for Wachsmuth — who by all accounts was just a few feet away from the door — to answer the knock.

Gosman emphasized the fact that Chretien’s report, and the defendant’s civil answers to Wachsmuth’s lawsuit, say the plan was to ram the door “immediately” if the home’s occupants did not answer the department’s knock.

Chretien said that by “immediately,” he meant there would be no intervening event after knocking — that there wouldn’t be a second knock, there wouldn’t be a phone call into the home.

“The fact is that people don’t answer their door immediately,” said Gosman, adding, “It’s a common sense term and one you don’t carelessly use to mean ‘wait a reasonable amount of time.’”

Feathers and Chretien both testified that, prior to the search, they specifically discussed the need to wait a reasonable amount of time before entering. Feathers said he understood the word immediately to mean “That reasonable amount of time was going to be shorter as opposed to longer.”

None of the officers recalled hearing the word “immediately” during their pre-search briefing.

Attorney Tom Thompson, representing the city of Powell and Chief Feathers in his official capacity, said Chretien could have done a better job wording his report. But he told jurors that if they hung their hat on that one word, “you ignore all the other testimony in this case with regards to the plan” and deny the officers the chance to explain what they meant.

Gosman said the officers dropped the flashbang “blindly.” Given the height of the window and frame, deploying Officer Matt McCaslin’s view “was probably limited to the ceiling.”

Both McCaslin, who deployed the device, and Kent, who broke out the window, said they were confident there was no one in the vicinity of where the device would land. The officers said they did not hear or see anyone in the room, and believed someone would have woken up or moved, given the dog barking, the door ramming and the window breaking.

The intent of the flashbang was to distract anyone in the home and keep them from arming themselves in the bedroom.

Officer say they found an unholstered .45 caliber handgun laying on the bed and another handgun sitting on a hope chest at the foot of the bed; a police photo also shows the weapons there.

Bret Wachsmuth said those guns had been moved from where he left them that night, saying the .45 had been in the nightstand, where a third handgun was found by police. Two rifles were propped up against a wall, which Bret did not dispute. Another handgun was found on a living room bookshelf across from the couch.

The officers generally don’t dispute Wachsmuth was asked to go down the basement stairs first.

Chretien testified he told Wachsmuth “you can go first” because he wanted to call her bluff and see if she was lying about the basement being empty. He said he didn’t actually expect her to go downstairs, but when she appeared willing to do so, he was confident there was no threat and therefore didn’t stop her.

Gosman alleged the officers made her go down the stairs to make the search more forceful.

“They had to add to the impact of what they were doing and so they ordered Tricia to get up and lead the officers downstairs first,” Gosman said.

Gosman said there were several officers in the small space who could have stopped Wachsmuth; officers testified that they were too surprised to stop her and then followed her down. Westby said that was appropriate supervision.

Wachsmuth testified the officers were pointing guns at her as she descended, a claim all the officers denied.

Westby rhetorically asked the jury why Wachsmuth would say the officers forced her at gunpoint down the stairs, offering as an answer, “maybe for the same reason that she initially told you that she was pregnant when this happened.”

Wachsmuth first testified she was one to two weeks pregnant at the time of the raid, then later recanted, saying she actually became pregnant one to two weeks later; Westby suggested that the facts of the case were not enough for Wachsmuth to prevail, so she was fabricating details.

The defense spent only a couple hours Monday, then Tuesday morning presenting its case, calling the three officers who comprised a backyard team — Investigator Dave Brown, Officer Cody Bradley and Officer Brett Lara — and dispatcher Marissa Torczon as the only new witnesses. The other officers had been called to testify during Wachsmuth’s case.

Sgt. Chretien was the only witness recalled by the defense. That was primarily to rebut Tom Wachsmuth’s testimony that Chretien had apologized for the search that night and a few days later; agent Wachsmuth said Chretien specifically apologized for using Tricia as a human shield.

Chretien denied that account of the conversations. Chretien said he was offended when Wachsmuth accused him of using Tricia as a shield a few days after the search.

Chretien said he may have again said sorry that Wachsmuth’s son had to be arrested, “but I sure as heck didn’t say, ‘I’m sorry for using your daughter-in-law as a human shield’ because it didn’t happen.”

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11 comments

  • posted by dissapointed

    March 05, 2011 1:19 pm

    As a recent Wyoming police officer early retiree. This is the exact reason I left the profession. I have been a member of a real swat team and using a suspect as a human shield would be reason for you to be run out of this profession. we are the ones wearing body armor. Quite frankly, the settlement amount in my opinion is a grave injustice. The officer's, chief and city should all be held accountable. the city hires the chief, the chief hires the officer's and they are responsible to have these officer's trained in such operations. Where I come from we trained once a month on dynamic entries of all kinds. I would suggest that if you don't have officer's with enough experience to perform these functions, you might want to take advantage of what is called the JTAC team which is comprised of individuals who continually train for these situations and guess what, they are free here in Park County to be utilized with just a phone call. Utilizing them like I said is free in this jurisdiction, would have been cheaper than the $30,001 dollars it ended up costing them, not to mention attorney's fee's that get awarded to the plaintif in a civil case if there is an award. which I'm guessing is in excess of 200,000 . This isn't the Wild Wild West anymore boys, thanx for setting an for the rest of us in this profession. Not to mention the case law this is going to generate. KUDOS Rookies

  • posted by Beau Brown

    March 05, 2011 12:04 pm

    Smoking a Bowl.. vs driving drunk. Smoking the bowl is safer at least. Tends to make a person paranoid and go slower than necessary. Least, thats been the case in my experience.

    Growing plants though, is foolish in a state that hasn't legalized yet. Foolish and illegal. That being said, I've known and met only one or two stoners in my whole life that I would consider "dangerous". Stoners like to sit back, think up big words,and interesting (if improbably) solutions to problems and to things. They like to watch pretty things, and eat some chips and drink some soda. Dangerous stoner to me is an oxy moron, so long as they are only 'high" from marijuana. As far as 'drug ring' commentors might be concerned, two plants and two people does not constitute a ring. Unless the plants are 10 feet tall..they're not going to yield anything resembling enough to sell at significant profit. Two plants, that personal use.

    To the naive people who really believe their communities are drug-free?

    Wake up and smell the freaking coffee. Drugs are everywhere around you. I've lived in Powell for a lotta years now and wasn't always the fine upstanding gentlemen. I've seen pot smoked in public parks, seen it smoked in house south of the tracks, seen it smoked north of the tracks. I've seen it smoked in the avenue's and along the highway to Cody and Lovell. I've watched tweekers scramble in trailers, apartments, north and south of the tracks.

    Don't be naive and assume that your community is drug free just because you want it to be. Fact is there are drugs everywhere in this town, and plenty of people willing to do them..and thats BEFORE you include the college.

    My thought?
    I think the police abused the situation, and having been on the recieving end of A police "overreaction", I find it laughable this kinda thing is still going on. Give the whiny couple who broke the law 150k. Her 'pain' was self inflicted.Fine the cracp out of her and her husband/boyfriend/whatever...the police get taught a lesson, with perhaps a leader from the raid night being terminated to make the point even sharper..

    and then

    Move on and get over it.

  • posted by Old Vet

    March 04, 2011 12:48 pm

    Agreed with fed up and Erik about the local law's actions.This isn't the first time these people have pulled an over blown stunt. Powell is turning into a class warfare town with a select group of people controlling the rest. It's all about the money.

  • posted by Erik Jones

    March 04, 2011 12:31 am

    They need to terminate all of the officers that were involved in the invasion of the citizens rights. They deserve the $590,000 because the cops acted in an inappropriate manor. This case is far beyond a citizen growing a plant because all of the Powell Police Department's acts were an invasion of their rights. If this incident would have occurred in a different state, than more people would be sympathetic towards the plaintiff. In many states marijuana is legal, and it is used for medical purposes. The cops crossed the line in this case so the citizens deserve restitution.

  • posted by HadarAlone

    March 03, 2011 6:04 pm

    What laws of God were broken?

  • posted by fed up with powell police

    March 03, 2011 4:37 pm

    It's about time someone had the nerve to step up and take on our worthless police dept. I was actually a neighbor at the time the drug raid took place. Well let me tell you this couple never did anything to justify what happened to them. Growing two marijuana plants, come on that is no worse that drinking and driving. That night was just a way of our police dept to play commando. They were all standing outside with there assault weapons like you would see in Iraq, laughing and joking about the flash bang. There was a lot of things that night that I thought could have been handled a lot differently. Everyone deserves the right to have rights in this country, and I feel that the Powell police violated those rights that night. Not only for this couple, but for everyone in Powell. How long will it be before they take down your door. Something has to be changed in our police dept. I believe that the chief of police should be held responsible for these actions. I know I sound a little frustrated with the police dept, and that would be true. I can't even get them to sit by my house to pull people over blowing though the stop sign. I guess it will take someone getting killed to change their ways.

  • posted by supporter with caution

    March 03, 2011 12:34 pm

    $1.00-----------you are correct...one dollar will do the trick to send the message Powell PD did act in an over the top manner and should address their officers or Chief in a manner of correction or termination...the reason one dollar will do it is show the violations of the constitution by those trusted to uphold it,,,,,, AS FOR WHO's RIGHTS ARE VIOLATE...everyones, that's the point we are all equal correct? Are Police above reproach and responsiblity to the oath they take?

    Now I agree,,,,cops have a tough rough job,,, I respect them and they by in large to a great job considering what they go up against I am a cop supported but I also recognize the failures within the Powell Police Department and they need addressed,,$590,000. ..no...$50,000 maybe...$ 25,000 OKAY...termination maybe....but only those that had to ability to stop this INSTEAD OF MOVING ON THE MISD. CASE. How many felony cases has Powell police conducted in the past year? oh and did't Powell police shoot a guy unarmed a few years ago? HMMMM,,,now they are doing these tactics on misd cases???look out dogs of leash

  • posted by Whos rights are really violated?

    March 03, 2011 11:33 am

    Constitutional rights? What about the rights of those who live in the neighborhood where the illegal activity was going on? What about the rights of those who should have the right to live and raise their children in a safe, drug free neighborhood? Why would someone's rights (who choose to knowingly break the law, no matter the consequences to others) be more important than the rights of everyone else’s? Since when did we begin to support drug use as a community? It is no wonder the family system and the moral standards are going straight down the toilet. If they are awarded anything they should use it to get therapy and relies that their actions affect a lot more than just themselves. How selfish can you be?

  • posted by Salty Dawg

    March 03, 2011 9:49 am

    This is better than watching all the drama soapies on TV...popcorn anyone?

  • posted by Get real!

    March 03, 2011 9:35 am

    $590,000 !? Seriously that is stupid. I will state that the actions of the police department and it's SWAT tactics were overkill. If it had been a Meth Cook or a drug ring then those tactics would have served better. The PD should revise their strategy and come up with a realistic response to different situations. I am not buying that these people were not "dopers"... they were trying to be and they were displaying criminal behavior associated with those who value drugs more than they do the law or the rights of those around them, to have a safe drug free environment. Just 2 pot plants is the argument. How do you know that they weren’t engaged in other drug activity? How do you know they didn't sell it? Their behavior makes them suspect to all kinds of other activities. The truth is that when you are using drugs, others who use drugs will hang around and some of those others have comprimised ethics, criminal thinking and often mental illness. These are people who will not hesitate to use a weapon or act in other violent manners to obtain something they want when they feel threatened. Out of 50 people they might know and get high with, it only takes 1 person like this to destroy everything. Do you want your children or grandchildren in a neighborhood where these types of people are more likely to be- because of the illigal activity? What will stop your child from becoming a victim of violent crime if they are in the wrong place at the wrong time- in their own neighborhood which should be drug free and safe? Two pot plants, is all it takes to bring someone unbalanced around thinking they can get drugs. The officers should admit that they were overzealous; those that broke the law should grow up and accept that they willfully did so understanding there would be consequences. The judge should laugh in their face for requesting $590,000 - stop getting high and get an extra job if you need money, like everyone else that works hard to support a family. Shame on her for being pregnant, and exposing her future children to an illegal atmosphere and the types of people that can come with that as a consequence. I don’t have an opinion of Marijuana, in and of its self I actually think it is safer than alcohol. However, it is against the law right now. And smoking a bowl and growing it are two different things completely. They knew exactly what they were doing, and they do not deserve anything other than an apology concerning the heavy handed tactics used.

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