Wednesday, April 11, 2007

Botetourt County officer responds to parents' lawsuit

The deputy says he had a legal right and "good faith" reason to enter the unlocked home.
The Roanoke Times
By Laurence Hammack

Of the many questions raised when Deputy Sheriff J.A. Wood let himself into an occupied home in the middle of the night without a search warrant, there is this one:

What does it take to terrify a 10-year-old girl?

The girl's parents, Mark and Cheryl Hunsberger, claim in a lawsuit that their daughter screamed in terror when she awoke the night of Feb. 2 in their Botetourt County home and found Wood shining a flashlight on her bed as a second man tried to pull the covers from her face.

In a response to the lawsuit filed Tuesday, Wood's lawyer admits his client was standing in the doorway of the girl's bedroom with a flashlight. But Wood "denies that the child was terrified," his attorney, Elizabeth Dillon, wrote in documents filed in U.S. District Court in Roanoke.

Melvin Williams, a Roanoke attorney who represents the Hunsbergers, said he and co-counsel Terry Grimes were "astonished" by such a statement.

"Logic and common sense defy any assertion that a 10-year-old girl would not be terrified upon awakening to two adult, male strangers in her bedroom at that hour of the night," Williams said.

Wood's response to the lawsuit also states that he had a legal right and "good faith" reason to enter the Hunsbergers' unlocked home -- which essentially was the finding of Commonwealth's Attorney Joel Branscom after a state police investigation last month.

However, Branscom looked only at whether any crimes were committed; the Hunsbergers' $10 million lawsuit claims that Wood and a second, unidentified man violated their constitutional rights against unreasonable searches.

According to Branscom, Wood's entry into the home was justified by all the circumstances as he knew them at the time: complaints of possible underage drinking at the Hunsberger home; no answer to his repeated knocks at the door; sounds of movement in the garage; and a father worried that his unaccounted-for 16-year-old daughter might be inside.

Under the "community caretaker doctrine," a police officer does not need a search warrant to enter a home under such circumstances, Branscom said.

Williams and Grimes take a different view. In fact, they filed an amended lawsuit after Branscom's announcement, citing additional details from his news release in support of their argument.

More than two months after the incident, some details remain unclear, including the name of a man identified only as "John Doe" in the lawsuit. The man is being sued along with Wood, a sergeant with the Botetourt County Sheriff's Office.

After being told by police that his 16-year-old daughter's car was parked outside the Hunsberger home, John Doe showed up at the scene and followed Wood inside.

The Hunsbergers' lawsuit claims that the two men ended up in the bedroom of the Hunsbergers' 10-year-old daughter, with Wood shining a flashlight on her bed as John Doe tried to pull the covers off the child.

In his response to the lawsuit, Wood denies that the "unknown intruder" was trying to pull the covers off the girl. According to Branscom's report, it was Wood who pulled the covers down and asked John Doe if the girl was his daughter.

Wood denied that the girl screamed, telling police she simply said, "Turn off the lights, they're not here" -- an apparent reference to some older juveniles whose partying had caused a neighbor to call police to the home in the first place.

The Hunsbergers say in their lawsuit that they were asleep at the time and had no idea police were moving through their home until they were jolted awake by the daughter's screams at 1:16 a.m.

When Cheryl Hunsberger said something about calling the police, "Deputy Wood responded, chillingly, 'I am the police,' " the lawsuit states.

That, too, is a point of contention. He may have used words to that effect, Wood's response states, but they were not uttered "chillingly."

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