Officer makes admission to wrongly taking property, ADA says

Mike Heine/The Week

(Published Jan. 24, 2007, 9:38 a.m.)

WHITEWATER

A retired Whitewater police investigator destroyed evidence seized when executing a search warrant at a city business in 2005 and did not follow the advice of a Walworth County assistant district attorney, according to court documents.

Larry Meyer admitted taking items from Stephen D. Cvicker's business that were outside the scope of a search warrant and then destroyed them, according to a declaration by Assistant District Attorney Dennis Krueger.

The declaration is among more than 100 pages of motions and affidavits filed Monday in Cvicker's federal lawsuit against Meyer. In his lawsuit, Cvicker claims Meyer, a veteran Whitewater police investigator, continually harassed him.

Whitewater police were investigating alleged identity theft by Cvicker's employees and Cvicker on suspicion of bail jumping, according to a July 15, 2005, search warrant affidavit.

After a search of Cvicker's landscaping supply business, Whitewater Rock and Mulch (formerly SR Hardscapes), Meyer contacted Krueger and admitted taking items that were not part of the warrant, according to Krueger's declaration.

Meyer also admitted the items were not written in the list of seized items filed with the clerk of court's office, according to the declaration.

Initially, Meyer said some of the items were evidence for other possible crimes, but he also said that some of the items seized were "of personal interest that were not evidence of crimes whatsoever," according to the declaration.

Cvicker claims the items taken illegally by police were personal notes he took in the Walworth County Huber Dorm about alleged wrongdoings in the facility, items needed for his divorce hearing 10 days after the search warrant, privileged information between him and his attorney, day-to-day business papers and more.

In an earlier declaration, Meyer said that the only items taken that were outside the scope of the warrant were printed copies of e-mails from Cvicker's computer. The copies were shredded so the police department would not be in possession of them. Cvicker was left with the electronic documents.

"The DA was aware of it. It wasn't hidden. It was written up," said Whitewater Police Lieutenant Lisa Otterbacher. "(Meyer) destroyed it because he knew he wasn't supposed to have it."

Whitewater police deny taking anything beyond the warrant other than the shredded e-mails.

Krueger said he told Meyer to file an amended list with the clerk of courts to document everything taken and told him to return to Cvicker the seized items that were not evidence of crimes, according to Krueger's declaration.

Later that day, Krueger and Meyer talked again.

"To my surprise and disbelief, (Meyer) advised me that I did not need to worry about this anymore because he destroyed the items taken that were outside the scope of the warrant," Krueger wrote. The assistant district attorney was never allowed to examine what the items were.

Krueger declined to comment when contacted by The Week, and The Week was not able to reach Meyer's attorney or Cvicker's civil attorneys for comments.

Frank Lettenberger, Cvicker's former criminal defense attorney, said that what Meyer did was wrong.

"You have a prosecutor who advises an officer to take certain steps under the law, and that officer did not follow that correct advice," Lettenberger said.

State statutes spell out what can be seized with a search warrant, and it's clear items were taken that were outside the scope of the warrant, Lettenberger said.

"It certainly doesn't comport to what law enforcement officers are allowed to do," he said. "If we allow police officers to simply not follow the rules, it undercuts the entire integrity of our legal system."

Otterbacher said all of the shredded documents were copies, not original materials.

That shouldn't matter, according to one legal expert.

"There is no reason for taking (items of personal interest)," said UW-Whitewater Political Science Professor John Kozlowicz, a public law expert. "They should have been returned. Under no circumstances, without judicial authority, should an officer destroy evidence that was seized.

"Just saying it's a copy of something doesn't mean you can get rid of it," Kozlowicz added.

Otterbacher said Meyer made a mistake by not following correct procedures. She would not say if he was disciplined.

"Investigator Meyer is a very good police officer. He made a mistake. It's clearly written in the report," Otterbacher said.

One local criminal defense attorney, who requested anonymity because the attorney sometimes works with Whitewater police, said taking evidence not in a warrant could be theft or misconduct by a public official. Swearing that a search warrant return is true and accurate when it doesn't contain a list of every item taken may also constitute perjury, the attorney said.

"It's actions like this that shake the public's opinion of the truthfulness of those sworn to protect the public," the attorney said. "Actions like this taint all investigations. The integrity of the law enforcement officer is sometimes the only thing that determines the innocence or guilt of a party."

OTHER ALLEGATIONS

Other allegations in documents filed as part of Stephen Cvicker's federal lawsuit:

- A 16-year-old secretary who worked for Cvicker said in a declaration that she noticed other officers helping with the search warrant question Meyer about taking certain records "as if they were doing something wrong."

- Two Hispanic employees said Meyer told them not to work for Cvicker anymore "or else there would be trouble." Meyer never said they couldn't work at other jobs.

- A mechanic for Cvicker was arrested the day of the warrant for driving without a license. When taken to the police station, he wasn't questioned about that offense, only about Cvicker and the company's Hispanic employees.

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