GOWANDA, N.Y. (WIVB) – A Gowanda man and village officials have settled a civil case over a July 2018 search and seizure that involved police officers misrepresenting details on a search warrant and other law enforcement documents.
David Yezek settled with the village for $775,000, his attorney, Anthony Rupp said. The village’s insurance company paid out the settlement.
“We’re hoping that with the financial impact that this could have on the village and the need to pay $775,000 that maybe they’ll think twice before they do it again,” Rupp said.
David Smith, the village’s mayor, and the new officer-in-charge, Ben Shields, did not respond to inquiries from News 4 Investigates for comments.
On July 20, 2018, Gowanda police officers Sean Hotnich and Richard Cooper responded to Yezek’s home on Torrance Place for an anonymous report of a noxious odor. Yezek had a series of cameras installed inside and outside of his home, which recorded the encounter.
Police charged Yezek with unlawfully growing cannabis and criminal possession of marijuana. Police said they found 30 pounds of packaged cannabis and nearly 600 cannabis plants growing in a room upstairs.
The Gowanda Police Department posted about the arrest on its Facebook page and the two officers were given letters of commendations for their efforts.
About six months later, the case was dismissed.
Yezek filed a civil lawsuit on the grounds that the officers violated his constitutional rights by conducting an illegal search, among other things.
Rupp argued that police did not have exigent circumstances to enter Yezek’s home, but they barged their way inside against the owner’s wishes.
Once they got inside, Rupp said, the officers found packages of cannabis in an opaque paper bag on a chair next to the kitchen table. Once the officers found the cannabis and grow room upstairs, only then did they go to a magistrate for a search warrant.
In the two officers’ depositions, they admitted that statements they made in police reports, the search warrant and other documents were inaccurate.
For example, the police report states that both officers were invited in by Yezek and they immediately spotted in plain view two large bags of cannabis on the kitchen table.
But the camera footage proved those statements to be false. Instead, the two large bags of cannabis were inside an opaque paper bag on a chair next to the table that was neither in plain view nor could be seen from the angle at which they claimed they spotted it.
While police said Yezek invited them in, the camera footage shows them tapping on a back door, which made the door ajar. One officer pushed it open and walked into a mudroom that leads to another door to Yezek’s kitchen.
“And when they opened that door I was right here and I yelled at them to stop,” Yezek told News 4 Investigates in November 2019.
Rupp said the officers then demanded Yezek to consent to the search while they were already in the home. Both Rupp and Yezek said the camera footage is likely what saved Yezek from a conviction.
“With the cameras in place and the video evidence showing what happened, there was really no wiggle room for them to avoid the consequences of what was a very brazen violation of Mr. Yezek’s rights,” Rupp said.
During former Officer-in-Charge Dennis Feldmann’s deposition, he said he would conduct an internal investigation after Rupp disclosed the discrepancies in what the two police officers wrote in the official and unofficial police documents.
“One of my weaknesses is trusting the people I have working for me,” Feldmann said in his deposition.
But Feldmann never responded to questions about the results of the internal investigation and there is no indication one was ever conducted. Feldmann no longer works for the department.
“The problem that Mr. Yezek and I have with the Village of Gowanda’s response and the police department’s response is they didn’t care,” Rupp said. “There was no internal affairs investigation. There were no consequences for these officers.”
Luke Moretti is an award-winning investigative reporter who has been part of the News 4 team since 2002. See more of his work here.