“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.”