GOWANDA, N.Y. (WIVB) — Gowanda Officer-in-Charge Dennis Feldmann said under oath last month that he never formally investigated allegations against two of his officers of an illegal search and seizure because “I believe that the arrest was legal” and “I believe the search was legal.”
But Feldmann, who has 36 years of law enforcement experience, indicated that he would have handled the complaint differently if he had known about all the discrepancies his officers wrote in the search warrant affidavit and police report for the July 20, 2018, marijuana bust at David Yezek’s home.
News 4 Investigates first reported about the federal lawsuit in 2019 and has since obtained the video-recorded depositions of Feldmann and the two officers who responded to the anonymous complaint of a noxious odor at Yezek’s home.
The two officers, Sean Hotnich and Richard Cooper, got several key details wrong in the search warrant affidavit and the police report, according to their depositions.
For example, the police report states that once the two officers entered Yezek’s kitchen, “patrol then observed two large bags of suspected marijuana in plain view on the dining room table.”
But a security camera aimed directly at Yezek’s kitchen table does not show two large bags of suspected marijuana on the table, and certainly none in plain view. Rather, the officers found two large bags of marijuana inside an opaque paper bag on a chair near the table after they got inside Yezek’s home and walked to the dining room.
In addition, the police report states that Yezek granted permission for the officers to enter his house. But the security camera outside Yezek’s home shows both officers entered an enclosed mudroom after one of them pushed open a gated door of the residence without permission.
“At the time you crossed that threshold, you did not have permission to enter, correct?” asked Anthony Rupp, one of Yezek’s attorneys.
“No, we did not,” Hotnich said.
“OK, and you did not have a search warrant?” Rupp asked.
“No, we did not,” Hotnich said.
When Rupp made Feldmann aware of these discrepancies and others, the police veteran said he would launch an internal investigation. Feldmann did not respond to inquiries from News 4 Investigates about the investigation.
“One of my weaknesses is trusting the people I have working for me,” Feldmann said in his deposition obtained by News 4 Investigates.
Police confiscated 30 pounds of packaged marijuana and 580 marijuana plants from Yezek’s home, a big bust for the small village 35 miles south of Buffalo. The police department celebrated the arrest on its Facebook page and gave the two officers certificates of commendation.
A judge eventually dismissed the felony drug charges against Yezek because the marijuana was never sent to a lab to be tested, authorities told News 4.
Either way, Rupp said that if Yezek did not have the security cameras in and outside of his home, he very well could be sitting in prison.
“So, everything that they said that they did, which can be proven now to be a lie, is all on video,” Rupp said in a 2019 interview.
Exigent circumstances?
On a warm July afternoon, both Cooper and Hotnich responded to an anonymous complaint of a noxious odor at Yezek’s home on Torrence Avenue.
Hotnich, a journeyman officer who got demoted once as a cop in Batavia for “personal matters,” said in his deposition that he noticed a “very strong odor of marijuana” as soon as he opened the passenger side car door.
Both he and Cooper immediately walked toward the rear of the house, bypassing the front door, to a “mudroom” or an interior porch that leads to a door that opens outward from Yezek’s kitchen.
Hotnich said in his deposition that he believed the enclosed mudroom is part of Yezek’s home that is protected from illegal searches and seizures by the Fourth Amendment.
Hotnich said that due to the circumstances –a door to the mudroom was ajar, loud music, odor of marijuana and nobody answering – “we chose to enter and knock on the inside door.”
Rupp: So, you went in Mr. Yezek’s house? Into the mudroom?
Hotnich: Calling out to him, yes.
Rupp: At the time you crossed that threshold, you did not have permission to enter, correct?
Hotnich: No, we did not.
Hotnich said they pounded on the door, but the video shows him opening the screen door and lightly tapping a few times on a second door just before he and Cooper entered the mudroom.
Hotnich wrote in the search warrant affidavit that “officers knocked several times on the door which opened door with each knock. Officers announced themselves and entered the porch at which time the odor of marijuana intensified.”
Rupp showed Hotnich the security footage of when Hotnich and Cooper were at the back door.
Rupp: And this was the timeframe you told me you pounded on it for a long time and somebody yelled police, right?
Hotnich: Yes.
Rupp: OK, the pounding you’ll agree did not happen?
Hotnich: I must have been mistaken, sir.
The search warrant affidavit states that Yezek said “come in” and “who is it?” with the door partially opened “from knocking.”
Another discrepancy Rupp pointed out is that the door opens toward the officers and not away from them, so it would have been impossible for the door to become ajar by someone’s knocks.
Hotnich wrote in the search warrant affidavit that as he opened the door he observed Yezek, who told them to leave. Hotnich said they refused to leave.
Hotnich wrote in the search warrant affidavit that he saw a “large amount of marihuana on the dining room table.”
The police report by Cooper states that “patrol then observed two large bags of suspected marijuana in plain view on the dining room table.”
But footage from a security camera pointed directly at the kitchen table does not show any large bags of marijuana on the table. Neither does it show any large amount of marijuana in plain view.
Rather, the marijuana was inside an opaque paper bag on a chair next to the table.
A tin container was on the table, along with a cell phone, scissors and a small amount of cash. Inside the container were various objects and two small plastic bags that appeared to be either empty or had very little marijuana in them.
Security footage from Yezek’s dining room does not show two large bags of marijuana on the dining room table in plain view, as officers stated in the search warrant affidavit in July 2019.
The fact that the statements in the formal police documents conflict with what the security camera footage shows is perhaps the most critical element to Yezek’s lawsuit because the plain view exemption was the basis for the exigent circumstances the officers needed to legally enter Yezek’s home.
Hotnich: Yes, I saw marijuana.
Rupp: I mean, you don’t have X-ray vision, do you?
Hotnich: No sir, I do not.
Rupp: Officer Hotnich, you wouldn’t be lying to me would you about what you saw that day?
Hotnich: No sir.
Rupp: So, when it says that there was marijuana in plain view on the dining room table, that wasn’t accurate, was it?
Hotnich: I didn’t write the report, sir, so I don’t know what ‘Coop’ … what he considers large or not. It’s not as accurate as it could be.
Rupp: Would you agree with me that they were not by any description large?
Hotnich: Yes.
Rupp: OK, and the only other bags of marijuana that were discovered were in a brown paper bag that was not on the dining room table, it was on a chair, correct?
Hotnich: Yes.
Rupp: So, having gone through that again, would you agree with me that this statement is not accurate?
Hotnich: Yes.
Cooper, who wrote the police report, also gave Feldmann, the chief, a memo in September 2019 to “advise you of my actions and to refute allegations regarding [Yezek’s lawsuit].” (Feldmann later said he never read the memo and shredded it because it was not something policies and procedures required.)
“We also observed two large packages of suspected marijuana, wrapped in plastic wrap, sitting on top of Mr. Yezek’s dining room table, in plain view,” Cooper wrote in the memo to Feldmann.
Rupp questioned Cooper on what he wrote in the memo and police report several times.
Cooper said it was Hotnich who said he saw the two large bags of marijuana on the table and that he wrote “we” because “we were working in tandem; it was me and my partner.”
Rupp: So, we means what you saw and what he saw?
Cooper: Correct.
Rupp: Well, so why would you tell Officer-In-Charge Feldmann what one of you saw, use the word ‘we’, and then not know whether he saw it or not?
Cooper: Apparently, it was an error.
Rupp: That’s a pretty big error because that’s the sentence where you say it’s in plain view. Isn’t that right? That’s the critical sentence in the whole report because that’s what gets you access to his house, correct?
Rupp continued, “That’s what you wrote?”
Cooper: Yes.
Rupp: That’s what you told your boss?
Cooper: Yes.
Rupp: And it wasn’t true.
Cooper: Correct.
Rupp: Correct, it wasn’t true?
Cooper: Correct.
Officer in Charge agrees to launch investigation
Feldmann was firm and confident early in his deposition when he said he believed the search of Yezek’s home was legal. Therefore, he saw no reason to do any kind of thorough internal investigation of the incident once Yezek filed his lawsuit, he said.
Instead, Feldmann said he reviewed official police reports and the search warrant affidavit and had discussions with both Hotnich and Cooper as part of his normal duties. His conclusion? They did nothing wrong.
Feldmann also said that he never compared what the officers wrote in the official police documents to the security footage from Yezek’s cameras.
Rupp then walked Feldmann through each conflicting statement the officers wrote in the official reports.
The conflicting information included:
Neither of the officers pounded on any door to get Yezek’s attention.Search warrant affidavit states the door in the mudroom that leads to Yezek’s kitchen opened with each knock, but the door actually opens outward, not inward, which would make it impossible for someone’s knocks to open the door.Footage of a camera pointed at Yezek in his dining room does not show Yezek had invited the officers inside his house, contrary to what the official police document stated.There were not any large bags of marijuana on the kitchen table in plain view.Cooper wrote in the police report that a judge granted the search warrant and then they found 580 marijuana plants upstairs, but they actually found the plants during a search before the warrant had been secured.
Rupp asked Feldmann if he was aware that his officers used the plain view exemption of allegedly spotting two large bags of marijuana on the dining room table as the basis for ignoring Yezek’s order to leave his house.
Rupp: And would you agree that there is no marijuana on the table to be seen?
Feldmann: Yes.
Rupp: Are you aware that officers Cooper and Hotnich have testified under oath that they discovered the growing operation before they got the search warrant?
Feldmann: No.
Rupp: Does that give you any pause for concern that the police report and the sequence of events that they recited was not accurate?
Feldmann: Yes.
Rupp continued: Is it fair to say, Officer Feldmann, that we’ve now seen just from what I’ve shown you so far today, we’ve seen numerous instances of these officers giving inaccurate accounts of what happened that day in numerous documents, several documents, both under oath and unsworn?
Feldmann: Yes.
Rupp: OK, does that give you any cause for concern?
Feldmann: Absolutely.
Rupp: Does it make you want to investigate Mr. Yezek’s allegations of police misconduct more thoroughly?
Feldmann: Yes.
News 4 Investigates made numerous inquiries with the Gowanda Police Department for an update on the investigation, but never got a response.
Dan Telvock is an award-winning investigative producer and reporter who has been part of the News 4 team since 2018. See more of his work here.