Fired trooper's 'inappropriate' actions in seizure draw support, criticism
JARED MILLER Star-Tribune capital bureau | Posted: Sunday, November 11, 2007 12:00 am
CHEYENNE - A state trooper lost his job last week for "flagrant and inappropriate" methods he used during an April 7 bust that netted $3.3 million.
But that hasn't slowed efforts by the U.S. attorney's office to seek forfeiture of the cash in civil court.
Wyoming U.S. attorney spokesman John Powell said it's unclear whether Peech's actions will be a factor in the case, or how they might influence a judge's decision.
"We're not going to stop pursuing the forfeiture action at this time," Powell said.
The decision to press forward with the forfeiture has heightened questions about the dismissal of former Trooper Ben Peech, and whether his actions will affect the government's ability to hold onto the money.
Peech, a 10-year-veteran of the Highway Patrol, was initially praised for confiscating the $3.3 million in a collaboration with special agents from the federal Drug Enforcement Administration.
But his actions fell under scrutiny when Highway Patrol Administrator Col. Sam Powell learned that Peech had phoned in a bogus drunken driving complaint just before the early-morning bust and pressured a dispatcher to omit his name from the call log.
Peech said he placed the call to the statewide DUI hotline, or REDDI, to protect a federal informant. Powell rejected the argument and placed Peech on paid administrative leave before finalizing his termination last week.
"Your actions discredited you and the (Highway Patrol) and the REDDI program," Powell wrote in Peech's termination letter.
Peech's departure from the agency after nearly 10 years drew sharp criticism from state and national law enforcement groups. Leaders of the groups say Peech was fired for his efforts to create a lodge of the Fraternal Order of Police. Powell and other officials have denied the charge.
Peech argues that the bogus DUI call was similar to other types of deception and subterfuge used every day by law enforcement officers. In his defense, Peech produced a recent U.S. 9th Circuit Court of Appeals case that purports to show the outer limits of allowable trickery and subterfuge used by law enforcement.
In the June 2007 case, U.S. v. Alverez-Tejeda, police in Washington state caused a known drug dealer to crash his car. When the dealer got out of his vehicle, an undercover cop stole it and used a search warrant to seize the drugs inside.
The charade was staged to look like an accident so the drug dealer would not realize an informant had tipped off police about the drugs, nor compromise an ongoing investigation into the dealer's employer.
Although the court did not endorse the methods as a "model for future creative seizures," it said the police acted properly and did not violate Fourth Amendment limits on the use of trickery in conducting the seizure.
Peech argues that his methods were far less invasive, and well within the boundaries set by the courts. Wyoming is part of the U.S. 10th Circuit Court of Appeals.
Peech said he called in the bogus DUI report for the same reasons the Washington state police staged the crash: to protect an informant and an ongoing investigation.
Because state troopers don't normally patrol after midnight in Wyoming, Peech explained, his presence on the highway might have tipped off the owners of the $3.3 million. He called in the phony DUI report to have a reason to be out on patrol at 3 a.m.
Peech said he asked the dispatcher to delete his name from the report to complete the subterfuge.
Peech is also accused of persuading a DEA agent to call in a second phony DUI report, and for ignoring a legitimate drunken driving report so he could focus on the sting. Peech has denied both charges.
"The fact of the matter is, and everyone knows it from watching TV, the cops are allowed to use subterfuge and things like that to protect informants in an investigation," Peech said.
Peech has a history of pushing the envelope - and making major drug busts.
Peech was accused of using improper questioning techniques during a 2003 traffic stop that netted 5 pounds of marijuana from Kevin Francis O'Boyle.
O'Boyle appealed to the Wyoming Supreme Court, which determined in 2005 that Peech's questions - including a query about the kind of mascot at O'Boyle's son's college - were too wide-ranging. As a result, the high court allowed O'Boyle to withdraw his guilty plea.
However, U.S. District Judge William F. Downes in 2006 concluded that Peech's questions were within the law.
Experts divided on tactics
Peech's colleagues in the patrol have theories about why the patrol administration frowned on his use of the REDDI drunken driving call system to make the April 7 bust.
One trooper who asked not to be identified said the REDDI program is highly successful and considered a "sacred cow" by Highway Patrol administrators, many of whom were on the force when it was created 25 years ago. Technically, Peech did nothing wrong, the trooper said.
Another trooper who asked not to be identified said the REDDI report was simply an excuse to jettison a trooper who had deep personality and philosophical differences with some agency administrators.
The trooper said the episode has put the agency on edge, even though troopers are divided on whether Peech deserved to be fired.
Law enforcement experts are also divided on the legitimacy of Peech's actions.
Andrew J. Scott, a recently retired Boca Raton, Fla., police chief who now works as a law enforcement consultant, said bogus reports are a common component of surreptitious police work - but they are nearly always part of a supervisor-approved plan.
While Peech's decision to act on his own showed initiative, it probably was grounds for discipline, or at least a stern reminder about proper protocol, Scott said.
"I would probably commend him for taking an initiative, and probably counsel him for not passing this on to his supervisor and getting approval," Scott said.
One detail that got Scott's attention was Peech's disciplinary history: nine offenses in 10 years, including two short suspensions for damaging his patrol car and one written reprimand for discharging a shotgun into the floorboard of his vehicle.
In an earlier interview, Peech argued that it is common for hard-working troopers to damage their vehicles in the line of duty. Scott disagreed.
"An officer who has 10 years on the force should never have that many disciplinary issues," Scott said.
Edward Mamet, a former 40-year veteran of the New York City Police Department and president of a law enforcement consulting firm, said what Peech did was wrong.
While deceptive tactics are commonly used by law enforcement, he said advanced planning and approval are critical, and bogus DUI reports are out of bounds.
"People get arrested for making false reports," Mamet said. "If he did that without supervisory approval, there's no excuse for that."
Mamet said Peech discredited himself as a courtroom witness by making the bogus report; he would be an easy target on cross-examination.
"I don't know whether he deserved to be fired, but he certainly deserved to be disciplined," Mamet added. "I think what he did was totally inappropriate."
Impacts on the case
Whether Peech's techniques and subsequent discharge from the Highway Patrol will affect the forfeiture of the $3.3 million remains unclear.
One of the men who was apprehended in the stop, Rusty Boschee of Elk Grove, Calif., has requested the return of the money.
Boschee and a passenger were released after they told authorities the money did not belong to them. However, they said the owner of the cash, which was packed into eight suitcases, would be upset if it did not arrive at its destination.
The U.S. attorney's office has made an official claim for the money. Boschee's lawyer is expected to submit his written arguments to the court by next week, said Powell of the U.S. attorney's office.
The judge who decides the fate of the money is likely to consider Peech's actions poorly advised but well within the law, said Mamet, the consultant from New York City.
"It's a civil matter, so there's no jury," Mamet said. "His credibility would be not as damaged in front of an administrator law judge."
Civil forfeiture helps police shut down big-time criminal operations by allowing law enforcement to seize property with a lower standard of proof. In criminal cases, guilt must be proven beyond a reasonable doubt. In civil forfeiture, property need only be more likely than not involved in crime.
In this case, the money was seized as part of a major federal investigation, according to DEA agents working with Peech.
More details may eventually be known if the U.S. attorney's office is forced to make its case in federal court.
Reach capital bureau reporter Jared Miller at (307) 632-1244 or at jared.miller@trib.com.