Police suit: Sheriff’s lieutenant disagreed with police plan

Posted 2/22/11

An eight-member jury is hearing the federal civil rights trial, taking place in Judge Alan Johnson’s Cheyenne courtroom in the U.S. District Court of Wyoming.

Wachsmuth alleges police violated her civil rights and used excessive force in a Feb. …

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Police suit: Sheriff’s lieutenant disagreed with police plan


Plaintiff Tricia Wachsmuth continued to present her case against the city of Powell and 11 Powell police officers last week, eliciting testimony from a Park County Sheriff’s lieutenant who believed police were using too much force in searching the woman’s home and from a police-practices expert who said police made a “mountain out of a molehill.”

An eight-member jury is hearing the federal civil rights trial, taking place in Judge Alan Johnson’s Cheyenne courtroom in the U.S. District Court of Wyoming.

Wachsmuth alleges police violated her civil rights and used excessive force in a Feb. 24, 2009 drug raid of her and her husband Bret’s East North Street home.

Among other complaints, Wachsmuth claims the officers failed to give her the constitutionally required time to answer her door before they broke it down, they unnecessarily deployed a flashbang and SWAT-style tactics in the search and they used her as a human shield as they entered her uncleared basement.

Police deny those allegations and say the information they had — of many loaded weapons and potentially unstable residents — justified a dynamic entry into the home.

On Wednesday, Thursday, and Friday, the jury heard from Park County Sheriff’s Lt. Dave Patterson, Officer Chad Miner, police-practices expert D.P. Van Blaricom, former Powell Police Officer Matt Danzer and Powell Police Sgt. Mike Chretien.

On the afternoon of Feb. 24, 2009, Miner said he took a phone call from a confidential informant who alleged that Bret Wachsmuth was growing marijuana.

Having never before investigated a grow operation, and believing the Wachsmuths’ residence was located outside city limits, Miner consulted Lt. Patterson at his Powell office.

In his time in law enforcement in Utah and Washington, Patterson had been the primary investigator in several hundred narcotics operations, including roughly 50 marijuana grows, Patterson said. He also is the leader of the sheriff’s Special Response Group, a SWAT-type team. Powell police do not have a SWAT team.

Testifying on Wednesday, Patterson said it appeared to be a small growing operation alleged by the informant.

Further, he said there was no direct evidence of Bret Wachsmuth’s potential for violence.

As a result, Patterson had suggested the police department consider involving Bret’s father, Powell Department of Criminal Investigation agent Tom Wachsmuth, in the search, and either do a knock and talk or a surround and call-out, where officers would surround the home and call Bret Wachsmuth out.

Despite the information about Bret being paranoid and there being firearms all over the house, “I wasn’t hearing anything that concerned me enough to think these suggestions couldn’t be used,” said Patterson.

But he said Miner and then-Deputy Park County Attorney Jonathan Davis flat-out told him they weren’t going to use those suggestions and appeared to be leaning towards a dynamic entry.

“It was like it was a predisposition in the mind to go that route without looking at other options first,” Patterson said.

He said he didn’t think police had enough information pinned down, such as only learning later in the afternoon that the house was in the city of Powell rather than out in the county.

“I absolutely felt like we had the information that we needed,” Miner later testified.

Patterson said things appeared to be “progressing quickly.”

Patterson said Miner told him when they spoke early in the afternoon that “administration was on his ass and he needed to get a door booted.”

When he asked what the hurry was, since the grow operation would presumably continue operating, Patterson said Miner told him he was going on days off the following day “and he just needed to get this thing done.”

“The only rush I would have had was for a couple reasons,” testified Miner later. “One, I was going on days off. Two, I wanted to handle the case personally due to the sensitive nature (of the suspect being the son of a law enforcement officer).”

“My motives were to get this handled and taken care of as quickly as possible because it’s not a comfortable situation to be in,” he said.

Miner said he actually ended up working on Feb. 25, because following the search, “I had a lot of work to do.”

Miner also said that, after Patterson left, the confidential informant said he had tipped off Bret Wachsmuth that the police were coming. That, Miner said, was another reason to show caution and move quickly — before evidence was destroyed. That information was not mentioned in the affidavit used to secure the search warrant.

Miner said he doesn’t remember saying he was being pressured to boot a door.

“I’ve never been pressured by my administration to force entry in any case,” he said.

Wachsmuth’s attorney, Jeff Gosman of Casper, suggested during Miner’s cross examination that Bret Wachsmuth’s lack of a criminal record should have been the most important factor in determining how to execute the warrant.

Miner disagreed, citing the concerns of Wachsmuth’s mental stability, loaded guns, paranoia and alleged habit of peeping out his windows.

“All of those things collectively would be more important to us than his criminal history,” said Miner.

D.P. Van Blaricom, a retired Bellevue, Wash., police chief, and the plaintiff’s police-practices expert, testified that the department’s actions were unjustified given the information they had.

“This is what my grandmother would have called making a mountain out of a molehill. It just wasn’t there,” Van Blaricom said.

He said given the small size of the grow operation, the Wachsmuths’ lack of a criminal history and the fact that it was a misdemeanor search warrant were all factors that made such a forceful entry inappropriate.

“What are they going to do? Shoot it out with you over two marijuana plants? That’s extremely unlikely,” Van Blaricom said. Though only two mature plants were seized in the search, police say they’d been told to expect 10 to 20 plants.

Agreeing with Patterson, Van Blaricom said a knock and talk or surround and call-out would have been better options, saying escalating the opportunity for violence “is the last thing you want to do.”

He said Powell police’s actions were the kind of tactics you would use in a fortified crack house in East Los Angeles.

For example, “They (flashbangs) are only used in serious cases where you expect armed resistance. You really expect there’s going to be shooting when you go in there,” said Van Blaricom.

Chretien, who had considerable SWAT training and experience before coming to Powell, created the dynamic entry plan. He said the decision to deploy a flashbang in the master bedroom was to help distract whoever was in the home from the officers entering the front door. Also, the informant had told police many guns were in the bedroom.

A Powell police officer watching the residence had reported a 10-year-old child went into the home and hadn’t come out. Chretien said officers hadn’t believed the Wachsmuths’ had a child of their own and therefore he reasoned the child wouldn’t have been sleeping in their master bedroom.

The reported “child” was apparently Tricia Wachsmuth, as she was the only person home at the time of the raid.

Police Chief Tim Feathers had tasked Chretien with drafting the plan because of his SWAT experience.

As a former police chief, “Had I been briefed on this plan, I would have not gone along with it,” Van Blaricom said.

The defense attempted to block Van Blaricom from testifying, in large part on the grounds that he had not been in law enforcement since retiring in 1985. Van Blaricom said he has continually reviewed case law and policies from the National Tactical Officers Association (NTOA) and has been in hundreds of cases as an expert witness since retiring.

“Reading articles from a journal that you receive of an agency (NTOA) you’re not a member of does not make you an expert,” argued police attorney Tom Thompson.

Johnson, however, said it would be foolish to dismiss Van Blaricom’s time as an expert witness and reading policies and procedures.

“Just because ... a doctor may be lecturing in a lecture hall on anatomy doesn’t mean that person doesn’t have expertise just because they’re not cutting on people every day,” Johnson said, allowing Van Blaricom to testify as an expert.

In examining Van Blaricom before the jury, police attorneys noted he had never deployed a flashbang, personally investigated a grow operation, served on or trained a SWAT team and hadn’t served a warrant he’d personally obtained since 1959. Van Blaricom, however, said he was the commanding officer in many operations while Bellevue’s police chief, including 14 SWAT operations.

The expert witness for the defense, Cmdr. Thor Eels of the Colorado Springs Police Department, is scheduled to testify this week.

Neither Danzer, who now works for the Bozeman, Mont., police department, nor Chretien could provide an estimate of how long they waited for the door to open.

“It seemed like it was eternity standing on that front porch,” said Danzer, saying he was worried about the wait.

“They could be getting guns, they could be loading them, they could be getting ready to ambush us, I didn’t know,” he said.

“I thought we stood there (on the porch) for an uncomfortable amount of time,” said Chretien.

Miner roughly estimated that police waited five to 10 seconds after knocking before he rammed the door.

Van Blaricom testified that if Wachsmuth was sitting on the couch a few feet from the door as she said, it likely would have taken five to 10 seconds to walk to the door and open it.

Wachsmuth has testified the officers never audibly knocked or announced their presence.

Police have said their plan was to knock and announce their presence, and breach the door “immediately” if it wasn’t opened. Gosman questioned the officers about what their understanding of the plan was, given the constitutional requirement that on a knock-and-announce warrant, officers must wait a reasonable amount of time — given the totality of the circumstances — before breaching the door.

Chretien testified that “immediately” meant before anything else occurred, such as another knock on the door or phone call.

Gosman questioned both Miner and Chretien as to why their reports on the incident did not mention waiting a reasonable amount of time before breaching the door or that Tricia Wachsmuth went into the basement before being arrested, among other omissions.

The officers replied that the report was prepared for criminal prosecution, not for defending themselves against litigation.

Gosman also questioned why a plastic bag containing cocaine residue wasn’t initially listed in an evidence log and why guns appeared to have been moved between police photographs.

Miner said the plastic bag was inside a box that was listed in the initial log, and the guns were moved for close-up photos.

The officers have testified the decision to make a dynamic entry ultimately was made by Feathers.

Chretien said he had asked if involving Tom Wachsmuth was an option and was told “it wasn’t.”

“I was a soldier; I was told to do (it) so I did,” Chretien said of planning the dynamic entry.

Feathers has not yet testified in the case, but is expected to testify he believed involving Tom Wachsmuth was a bad idea.

The trial continues this week.