ROCKVILLE – In a move some court watchers say could have far-reaching repercussions for the Montgomery County Police, Circuit Court Judge Steven Salant threw out the evidence obtained in a raid on a Damascus home in January and said the police had violated a local family’s civil rights.
“I do find an unlawful invasion of the defendants’ property … the defendants were entitled to an expectation of privacy in the area officers went in the back of the house,” Judge Salant said following a suppression hearing in which the defendants claimed their Fourth Amendment rights were violated. He called the officers’ justification for approaching the rear door of the house “doubtful” and some of the police testimony “not true.” Salant tossed out most of the prosecution’s evidence – including evidence obtained when police confiscated several cell phones.
Assistant State’s Attorney Jessica Hall declined to comment on the case, deferring to state’s attorney’s office spokesperson Ramon Korionoff.
According to Korionoff, the state may appeal the judge’s ruling, or look at dropping some charges against the defendants or may proceed against the defendants despite the setback. “We’re still doing research and looking at myriad of options, including appeal,” he said.
“Every case has its ups and downs. Yesterday’s motions hearing was one of those moments where the end result was not satisfying for our office,” he said. “We are keeping all options open and will determine how to proceed in the case for Monday’s trial date.”
Defense attorney Chris Griffiths, co-counsel with Rene Sandler and Terrell Roberts, declined to comment until it is clear where the case is headed.
County police and sheriff’s deputies arrived at the Magas home in Damascus on Jan. 4 to investigate a tip from a pizza delivery man who claimed there were “young-looking people with beer,” on the property.
According to a police press release from Jan. 6, the officers and deputies from the Montgomery County Police Holiday Season Task Force “were assaulted early Sunday morning,” after arriving at the home on the 9400 block of Damascus Road.
In charging documents police claim homeowner George Magas was visibly drunk and belligerent and had to be tased once to effect a “change of behavior”. Police tased his son Eric twice and arrested four members of the Magas family. Police charged George Magas with resisting arrest, second-degree assault, obstructing police and attempting to disarm a police officer.
Video provided by the defense to The Sentinel shows police dragging George Magas outside his home, two officers sitting on his chest while he was handcuffed and one police officer tasing Magas several times while he was on his back and offering little or no resistance to police.
Police charged his wife, Cathy Magas, with one count of assault and one count of obstructing police. Police charged their son Nicholas with one count of obstructing police and charged Eric with one count of assaulting law enforcement, one of obstructing police, one of second-degree assault, two of resisting arrest and three of possessing a fictitious license. Police also charged each of them with 21 counts of knowingly allowing underage possession of alcohol, although defense attorney Rene Sandler said in June some attendees tested negative for alcohol consumption.
In his ruling, Salant brought up a number of inconsistencies in police testimony, including two different versions of how well-lit the front of the house was, both of which a defense witness and 26-year veteran of the force disputed; why police approached the rear stairwell when they did; whether or not the officers had night vision goggles, and who carried a keg up the rear stairwell as evidence.
One officer admitted to not knowing procedures for party dispersal that are written by the captain of their unit and used by the Department of Justice as nationwide procedures, while another officer said those procedures could be used as mere “guidelines” rather than steadfast rules.
Salant also ruled out evidence collected via the warrant police got later the following morning, which they used to confiscate a number of items, including cell phones. Salant said the warrant was “extensive” given that police mentioned only evidence of underage drinking and marijuana to justify the warrant and did not mention the alleged assaults.
Salant’s ruling focused on the curtilage, or area immediately surrounding the house, as a protected area. Salant said police infringed on the curtilage when they approached the detached garage and stairwell to the basement, both of which are in the rear of the house.
Police testified they initially observed people in the back of the house and heard noises consistent with a party from the church parking lot next door, behind rows of trees delineating the property line. They also repeatedly testified underage drinkers are distinctive in their “exaggerated movements” and are “more boisterous” than legal drinkers.
“The loudness, just the way they presented themselves, was consistent with being under 21,” Sheriff’s Deputy John Durham said in his testimony. “They kind of exaggerate their movements, like ‘hey look at me’…rather than adults standing around drinking.”
Durham admitted when pressed that it may be hard to tell the difference between a 20-year-old and a 21-year-old based on that.
“It’s not 100 percent,” he said.
As the police moved closer to the house to view it from trees along the property line, Durham and Montgomery County officer Jeremy Smalley said they saw some individuals with SOLO-style cups and someone urinating outside.
The officers testified they went toward the back because the front was not well-lit; Durham said the first floor was dimly-lit while Smalley said it was completely dark. In contrast to both of them, defense witness and 26-year veteran police detective Thomas Stack testified last week that the first floor was lit well enough to read by when he was at the house that night.
Smalley and Durham testified they moved to the detached garage without a clear objective, according to Salant – either they were trying to confirm underage drinking, had verified underage drinking or were already trying to disperse the party. But whatever the objective at that time, Salant said, the signs of a party, Solo-style cups and individuals surrounding the house were not enough to justify moving forward.
“There is no doubt that (the police) are now on the defendants’ property, the curtilage, and at this point there is no statement as to why they are doing that,” he said. “The reason why when officer Durham says that he was going there in order to make contact with the owner is doubtful is because he says in his testimony that at (the detached garage) he was in surveillance mode. He was in surveillance mode. He was not at that point seeking to contact the owner.”
Salant also said the officers did not follow a Department of Justice policy book that Montgomery County police captain Tom Didone co-authored on handling underage drinking. During the hearing, Durham testified he had not seen the policy book before nor practiced alternative methods of dispersing a party.
According to the policy, there should be a contact officer who tries to touch base with the homeowner before dispersing the party. However, Durham and Smalley approached the back of the house even though they knew other units were coming.
“Deputy Durham says that ‘we approached the rear of the house based on movement that it might be a bottom apartment.’ And then he said ‘we tried to gain access to the house in order to get consent and then disperse,’ but that is somewhat disturbing to the court because Smalley already acknowledged that the units were coming and that the two officers at the front of the house were the quote ‘contact officers,’” Salant said.
Salant also took issue with Smalley’s account of approaching the house, and questioned why they formed a plan to approach the front and back simultaneously.
“Officer Smalley indicated that they waited for the units to arrive before approaching the house, but that was not true. They were already there. Officer Durham said he saw the other units coming and Smalley indicated that ‘yes, we could communicate with those units,’” Salant said. “The court is concerned with that statement because in fact that statement appears nowhere in any of the reports and it doesn’t make sense. Why would you go to the back and front at the same time if you’re trying to get the owner? Why would you have two points of contact rather than one?”
Salant said officers are entitled to enter someone’s property and knock on the front door as any other member of the public, but the path to the basement entrance is not in the same category.
“When you approach from the driveway as any member of the public … you don’t get to the detached garage. There is no way this is open to the public,” Salant said.
The prosecution had argued that the case Alvarez v. Montgomery County applied, in which officers approached the rear door to break up an underage drinking party. But Salant differentiated that case because there had been a sign on the front door announcing the party entrance was around the back.
“In that case, the owners had created a path to where they could be reached, to be where they could be contacted if need be, to where people could walk to get into the house. Here no such path was created,” Salant said. “Whether or not the officers knew that the police officer in front had denied access really doesn’t matter because they were already on the property, they were already making their observations, they had already entered into the property without a warrant and essentially violated that expectation of privacy.”
After the officers talked to Cathy Magas and her son Marc at the bottom of the stairwell, both Durham and officer John Arsenault each claimed he alone carried the keg upstairs.
According to the statement of probable cause, police claimed that George and Cathy seemed intoxicated when they refused police entry to the house. When the altercation began, police saw individuals taking pictures or video with their phones.
Five hours later police returned with the warrant that cited signs of underage drinking and possession of marijuana, which police said they smelled when the basement door opened. Police seized cell phones with that warrant, though the warrant contained no mention of the altercations. Salant said police mentioned the seized cell phones and altercation in a later warrant, but because they were recovered via the first warrant the cell phones must be suppressed.
Right after the incident in January, Bruce Hall, a Damascus resident and friend of the family, said the Magas family are respected members of the community. Their sons have played on the Damascus High School varsity football team, according to Hall.
“They are a top notch family,” Hall said. “Their younger son is my son’s best friend. They are a good, fun-loving family. When I had hip surgery they were always there to help when I needed it. They sent me a fruit basket and offered to do whatever they could do to help me.”
The trial for the Magas family is scheduled to take place over four days beginning on Nov. 17.