Jill Schramm/MDN Officers Kolbe Bach, left, and Eric Hathaway sit next to their attorney Chris Redmann as the Minot Police Department’s attorney, Katie Schmidt, addresses the Minot Civil Service Commission Tuesday. At far right is acting police chief Capt. Dale Plessas.

The extent of law enforcement’s right to enter secured private property without invitation was the source of contention at an appeals hearing of two Minot police officers Tuesday. But it was perceived lapses in the police department’s training that led the Minot Civil Service Commission to soften the discipline of patrol officers Kolbe Bach and Eric Hathaway.

The two officers each faced a two-day suspension imposed by Capt. Dale Plessas, interim police chief, for an incident on Jan. 20. Commission members Miranda Schuler and Scott Burlingame – a third commissioner was absent – reduced the sanction to letters of reprimand in the officers’ personnel files.

The officers were being disciplined for “exceeding lawful peace officer powers by unreasonable, unlawful or excessive conduct” in connection with forced entry into a condominium building.

“I do not believe that we have any right to exceed the rights of the public,” Plessas told the commission. “I believe that the property owner has the right to restrict law enforcement, just as any public member, from their property, and unless there’s circumstances that permit us to, I don’t feel like we can just disregard those,” Plessas said.

According to information presented at the hearing, Hathaway was patrolling and conducting surveillance in a high crime area at about 1 a.m., focusing on a home in which a female resident had an active warrant. A male resident wearing a backpack left the home and took a ride service to a condominium building, which he entered, according to the testimony.

Hathaway and Bach, who had been called in to assist, used a knife tool to enter the residence hallway, disregarding signs that the building was restricted. After meandering through the hallway and not locating the individual, they ended up in a parking garage, where there was a parking spot filled with tools.

“It was unique in a sense that it was a collection of things not ordinarily displayed in public and also because there’s a large burglary occurrence in Minot, among other North Dakota cities, with tools,” said Chris Redmann, the officers’ attorney.

Without touching the tools, they were examining them for serial numbers when confronted by the Fox Hills Condominium Association president and his wife, whose security camera had alerted them to the presence of the officers. The upset individuals demanded the officers leave, and the officers exited through a garage door, calling their supervisor to inform her of the contact. The condo president later filed a complaint with the department against the officers. Plessas imposed a two-day suspension after the department’s professional standards lieutenant’s review found a sanction to be warranted.

“Officers were exercising proactive, initiative-driven law enforcement, as is the patrol function of the Minot Police Department policy. It says that patrol officers are directed to prevent criminal acts, conduct crime prevention activities such as residential inspections, among other things,” Redmann said. Instead of the department acknowledging that, he said, “They were accused of violating the law.”

Redmann cited case law indicating an officer’s authority to enter, not the manner of entry, establishes whether the activity is legal. Case law also establishes a public hallway is not a protected area requiring a warrant. Officers are not guilty of criminal trespass if acting in their course of work, he added.

The department’s attorney, Katie Schmidt, countered that the North Dakota Supreme Court has called officers technical trespassers for entering into an apartment building after catching a door before it closed. She also said the issue is not violation of constitutional rights but of department policy.

“The man was not doing anything suspicious,” she said. “In the officers’ own words, no one had requested their assistance. There was no emergency. There was no urgency, and there were no exigent circumstances giving rise to them entering the building.”

Both Hathaway, on the force for 3-½ years and Bach, on the force for 4-½ years, testified they felt their actions were acceptable based on their training and observations of more senior officers. They said they were surprised to be accused of violating policy and believed the penalty to be unwarranted.

A Minot patrol sergeant and the officers’ direct supervisor spoke to support the belief that the officers were conducting official business and not violating policy.

Plessas disagreed.

“It would be ridiculous for me to say that they can just go anywhere and do an extra patrol and consider that not trespassing,” Plessas said.

During commission discussion, both Schuler and Burlingame noted the incident should be a training opportunity for the department.

“I don’t like the fact that the two officers who have served our city well for multiple years are potentially facing suspension for what (is) deemed as a first offense, for something that I don’t know that they necessarily had clear guidance on, or that the city necessarily has clear policy on,” Burlingame said. He suggested a letter of reprimand, given that the officers felt they were acting appropriately even as public support was eroded.

“The public trust does matter,” he said. “Hopefully, from this can come additional training, additional policy from the Minot PD to ensure that no other officers ever have to deal with this situation again.”

Paul Semmen, condo association president, said he was disappointed in the commission’s decision to lower the penalty. He said he would have assisted officers had they been forthright about their decision to enter the building to follow a person of interest, but he had been told only that they were on “hall patrol.”

Semmen said he received no notice of Tuesday’s hearing and was not present but agrees with Burlingame’s concerns about eroding public trust.

“Here’s my question for any resident in this town: Do you feel they have a right to just come into your garage or your home without cause? No, and I feel that’s what they did to me,” he said. “Not only did they do that to me, they did that to 16 residents in our building.”

Based on the scenario and his knowledge of Fox Hills condo owners, Semmen questions whether the ride service actually dropped the individual off at a neighboring apartment building, and officers mistook the location.

He noted the condo association is upgrading its security system.

“This whole thing has kind of enlightened us to make our building a little harder to get into and more safe. So, I guess that’s the only benefit I could get out of this is they kind of alerted us to a problem with our front doors,” he said. “That’s going to cost us some money, but that’s what everybody in our building wants.”