WIVB recently spoke to Tony Rupp about his clients illegal search and seizure claims against the Gowanda Police Department.
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.
Read more about the illegal search and seizure here.
