Gowanda man will sue cops over ‘illegal search and seizure’

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One legal analyst calls this case "appalling" and believes it could catch the attention of the FBI

David Yezek was growing marijuana in his Gowanda home.

He smoked and sold some to friends.

So, it is no surprise that he was on the radar of the Gowanda Police Department.

On July 20, 2018, two Gowanda police officers seized on an opportunity to nab him after they got an anonymous report of a noxious odor emanating from Yezek’s Torrence Avenue home.

The events that followed were all caught on Yezek’s surveillance cameras – footage he said backs up his claim that the Gowanda Police Department violated his constitutional rights with an illegal search and seizure.

In addition, Yezek accuses Gowanda police officer Sean Hotnich of making false statements to obtain a search warrant after he, and his fellow officer Richard Cooper, had already entered his home without his consent and searched every room.

Yezek was charged with unlawfully growing cannabis, a misdemeanor, and criminal possession of marijuana, a felony. Six months later, the charges got dismissed.  

Now, Yezek has notified the small village 30 miles south of Buffalo and the police department that he plans to sue them.

“This was so unbelievably brazen, the way they forced entry into his house, the way they searched without a warrant, the way they lied about it in documentation to the Town of Persia judge, who then issued the warrant under false pretenses,” said Yezek’s attorney, Anthony Rupp.

Michael Taheri, an independent attorney with expertise in constitutional law, reviewed the surveillance footage and other court documents for News 4 Investigates.

He described the actions of the officers that afternoon as “very dangerous” and suspected that it could trigger the attention of the FBI.

“This is one of those cases where some people say, oh this is a technicality,” Taheri said.

“This is not a technicality. This is the core of the Bill of Rights, and people, this guy’s home was invaded by members of law enforcement.”

News 4 Investigates obtained the surveillance footage, search warrant affidavit and the incident report for Yezek’s arrest. Both documents contain statements that the surveillance video, and in one instance simple physics, show to be false, Yezek’s attorney said.

For example, Hotnich wrote in the search warrant that an interior door was “partially opened” from knocking. But that’s impossible because that interior door opens toward you, not away.

Another inconsistency his attorney points out is that Hotnich stated in the search warrant that he observed a large amount of marijuana on the dining room table. And the incident report states that the marijuana was in “plain view” on the dining room table.

But the surveillance footage shows that the marijuana was not in plain view. Rather, the marijuana was inside an opaque paper bag on a chair in the dining room that could only be viewed if you were in that specific room and searched the bag.

The Gowanda Police Department and the village’s mayor both declined to comment.

Lori Pettit Rieman, Cattaraugus County district attorney, said her office did not prosecute the case because “it seemed problematic to us.”

“But also, we had no idea of this surveillance footage,” she said.

Illegal entry?

Yezek, who is a U.S. Army veteran, was sitting at his dining room table on the afternoon of July 20, 2018, when he heard someone call his name.

The surveillance video shows the two officers walking to the back of the home onto a porch. One of them opened the storm door and appears to softly knock on the door, which slides open. They both walk inside the vestibule that leads to Yezek’s kitchen.

Yezek said he asked “who is it?” but got no response.

David Yezek

The surveillance video shows that Yezek pops up from his chair, peeks out his dining room window and rushes toward the door in his kitchen, where he is met by the two officers.

“I’m telling him ‘stop!’ and then he just starts pushing me,” Yezek said.

He said the officers grabbed him, turned him forward, and walked him into his dining room. The video shows one of the officers picking through a canister on the kitchen table. They both walk off camera, where Yezek said they searched portions of his living room.

“They’re yelling at me: ‘consent to search!’ I said, consent to search? You’re already searching the [expletive] house,” Yezek said.

Yezek said he told the officers several times that they need a search warrant and to stop, but they refused. The officers never got a consent form signed by Yezek to enter his home. Yezek was handcuffed and detained, but never read his Miranda rights, his attorney said.

The notice of claim accuses the officers of searching every room in Yezek’s house without a search warrant.

“They knocked for five minutes on the door, they told my client,” Rupp said.

“They made one little knock, which they really used to push the door open so they can then say the door was open so they could walk in.”

Shortly after entry, members of the Southern Tier Drug Task Force arrived. Several more officers enter the home. Hotnich left to get a search warrant.

While he is gone, the surveillance video shows officers walking in and out of the house, searching the pantry and walking to other rooms. It’s unclear what they were doing once they left the dining room because there were not cameras in any other room.

The task force did not return respond to a request for comment.

In addition, Yezek said Hotnich is seen on camera taking his driver’s license, but the police department never returned the license to him. Not only that, but a technician can be seen on the video using Yezek’s plastic garbage bags for evidence collection, he said.

Rupp said the case unravels further when Hotnich “perjured up an application” for the search warrant and “conducted an unlawful search under a warrant that they knew was bogus.”

Search warrant inconsistencies

The search warrant states that the officers immediately smelled an odor of marijuana once they exited their cruiser.

“Officers knocked several times on the door which opened door with each knock,” the warrant states.

Rupp said this is false, and the surveillance video shows one of the officers pushing open the back door.

The search warrant affidavit filed by Officer Hotnich

The warrant states that “Officers then knock on the interior door and also noticed two addition (sic) pad locks on same. Patrol yelled out ‘Hello!’ a male subject said ‘come in, then said who is it’ the door was partially opened from knocking…”

Rupp said these statements are also false.

First, he said, Yezek never invited them in.

Secondly, the interior door that leads to the kitchen could not have opened by knocks or by even pushing it; the door opens inward toward the person knocking.  

Finally, the other discrepancy in the search warrant affidavit is that the officers “observed a large amount of marijuana on the dining room table.”

Rupp said this is false and the surveillance video proves it. The marijuana was not in plain sight, but inside a brown paper bag. The officers only found it after already gaining access to Yezek’s home, entering the dining room and opening the paper bag. One of the officers can be seen dropping the plastic baggies of marijuana on the dining room table.

“It’s egregious misconduct,” Rupp said.

“Because it’s one thing when you’re talking about an officer misrepresenting the truth in sworn and official documentation, but it’s another thing when you’re talking about constitutional rights.”

Taheri, the attorney who has no connection to this case, said the camera footage “clearly support the claimants cause of action in this case.”

“So, this is a very serious intrusion that law enforcement made without a warrant. It resulted in his arrest. It resulted in him being detained. And frankly, it’s an appalling case.”

Police commended; Yezek threatens lawsuit

The following day after Yezek’s arrest, the Gowanda Police Department posted on its Facebook page a news article about the bust.

In a small village like Gowanda, a bust like this is big news.

The department also left a comment: “The Village of Gowanda Police Department will actively pursue and prosecute the illegal sale and use of illegal substances in our community. It is our sworn duty to keep the citizens of Gowanda safe and secore (sic) in their community.”

At the Aug. 14, 2019, village board meeting, Officer in Charge Dennis Feldmann commended both officers Hotnich and Cooper with letters of commendation for the bust and arrest.

Meanwhile, Yezek was assigned a public defender. His case sat idle for months.

Yezek said the district attorney’s office offered him a plea deal, but he refused to accept it.

In December, the Cattaraugus County District Attorney’s Office asked for the case to be dismissed.

“The case was dismissed because I didn’t present it to the grand jury,” said Rieman, the district attorney.

“I didn’t present it to the grand jury because the marijuana was not tested by the lab and I had no lab report,” she said.

Yezek walked a free man.

But he wants to fight back.

On October 18, Yezek filed a notice of claim against the village, the police department, and four Gowanda police officers, including Hotnich, Cooper and Feldmann.

The notice cites numerous claims of action, including unlawful search and seizure, violation of Yezek’s constitutional rights, false arrest, tampering with public records and official misconduct.

Yezek said he believes he’d still be in jail with a felony conviction if he did not have the surveillance footage.

“What I did is going to be legal probably in almost every state before too long,” Yezek said. “What they did is never going to be legal.”

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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