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Drug Charges Dropped in Day Care Case
Attorneys allege investigator fabricated evidence for warrant
Portage - Charges against a Columbus couple accused of running a drug operation out of a day care facility has been dropped over allegations the Columbia County Sheriff's Department fabricated evidence to obtain a warrant to search their home.
Columbia County District Attorney Tim Henney Monday moved to dismiss all charges against the couple during a court hearing in which the couple's attorneys were seeking to have confessions made by the couple shortly after their arrests thrown out as evidence. Henney said his dismissal of the charges stems from a July 23 ruling by Circuit Court Judge Richard L. Rehm who determined the warrant to search the defendants' home and day care center was invalid.
Rehm dismissed the physical evidence in the case on July 23 because the affidavit submitted by a Columbia County detective supporting a search warrant may have been based on misinformation provided by the sheriff's department.
The couple was arrested on Nov. 26, 1997, after city of Columbus and Columbia County officers executed a search warrant on their home, from which the wife ran a day care. The warrant, which resulted in the seizure of 93 grams of marijuana, was granted by Circuit Court Judge Daniel S. George. The defendants were scheduled to go to trial on Aug. 12.
The husband was charged with possession of marijuana with intent to deliver and maintaining a drug dwelling. The wife was charged with being a party to possession and maintaining a drug dwelling.
In dismissing the evidence, Rehm said the affidavit for the warrant contained information that, had it been included, may have caused Judge George to have second thoughts about granting the search warrant.
The wife's attorney, Stephen Meyer, and the husband's attorney, Stephen Eisenberg, both of Madison, argued to suppress the evidence because the warrant contained misleading information. They said the most important piece of information was a statement by a Columbus police officer, who said he had observed people entering and leaving the couple's residence and saw some leave without picking up children.
Meyer said this was a lie written by the sheriff's detective. He said the police officer did observe the residence but couldn't see anything from where he observed the home. The only vehicle the officers saw, said Meyer, was a delivery truck. Another piece of false evidence, the two defense attorneys said, was information about an anonymous informant. According to the warrant, the caller did not want a reward for his tip. According to other reports however, he did want a reward. Eisenberg produced a handwritten form, filled out by a county dispatcher, that showed that the informant indicated a desire for a reward on his initial call. And according to Henney, Eisenberg, who was not available for comment Monday night, has documentation showing that the informant was paid by CrimeStoppers after the defendants' arrest.
"Essentially, all of the evidence in the case, both the physical evidence and the statements from the defendants and others, were derived as a result of the execution of the search warrant," Henney said during the court hearing.
Henney said he was saving the court time by not forcing it to review and suppress each piece of evidence.
The most solid evidence remaining in the affidavit, after the discrepancies were omitted, was the citizen's tip, Henney said. And tips from citizen informants do not constitute probable cause for a search.
"All of a sudden the balance of the affidavit changes," Henney explained Monday evening.
"I have no doubt that the detective lied," Eisenberg said. And he did so to get a warrant from the judge. What is more of a concern for me is how the sheriff's department will react to this. We're all at risk when an officer acts like this."
The wife's attorney, Stephen Meyer, said, "It's a very sad day when law enforcement misrepresents facts on a search warrant...It just again shows the amount of damage that can be done to people when you have rogue law enforcement."
Columbia County Sheriff Steven Rowe defended his department and said the information was not fabricated.
"I can tell you my officers do not lie," Rowe said. "We don't lie and we don't have to lie."
Rowe said that statements made by the couple's attorneys were "cheap shots" at law enforcement officials and felt the statements were even more unfair because his department isn't allowed to go public and defend itself.
"When attorneys can't think of anything else, they take a shot at the credibility of the officers involved," Rowe said. "I'm making them nervous, and if I'm making them nervous I'm doing my job."
Rowe said he planned to contact the U.S. Attorney's Office and pursue the case further.
"I think I owe it to my detective to make every attempt possible to clear his name." Rowe said. "I would stake my career on any of my deputies. I haven't given up on this yet."
But Henney doubts U.S. prosecutors will take the case. "This case is over," he said.
Moreover, the case leaves open the possibility of a civil rights suit against the Columbus Police Department and the sheriff's department, he said.
"I certainly think a civil rights suit is a distinct possibility," Henney said.
If the sheriff isn't seen to be taking care of the problem internally, Henney said, the district attorney's office may be approached to initiate an investigation.
"Something needs to be done so we can assure the public and the bar that we can trust officers that take the stand." Henney said.
"At this juncture, the ball is in the sheriff's court."
Since the search of their residence, the wife has forfeited her state day care license. And according to Henney, federal agents have seized their home, paying the couple $2,500 for the property, on which they owed back property taxes.
"The feds probably lost out on the deal," Henney said.
According to the defendants' attorneys, the couple will not attempt to have their home returned because of the legal cost that would be involved. According to the attorneys, the husband continues to work in Horicon but the wife voluntarily surrendered her day care license and is working at other jobs.