BART Sergeant Was Worried About Searches

Feb. 10, 2014
Sgt. Tom Smith had asked to have the SWAT team to take part in high-risk searches to ensure safety.

BART police Sgt. Tom Smith had asked his superiors to assign the department's SWAT team to take part in high-risk searches of residences to ensure safety, but was rebuffed, before he was shot dead last month by a fellow officer during a search in a Dublin apartment, sources told The Chronicle.

There's no indication Smith made the same request before the Jan. 21 search that turned tragic, with Smith accidentally shot by Detective Michael Maes. But the question of whether the BART officers who took part in the search were sufficiently trained for the job has raised questions inside and outside the transit agency.

While members of the SWAT team and several other BART officers have been sent to specialized training on making high-risk entries into buildings, none of the officers who went to Dublin had such training, according to the sources, who spoke on condition of anonymity because they are not authorized to discuss the case.

BART Police Chief Kenton Rainey has defended the decision to send a group of officers rather than the SWAT team to search the one-bedroom apartment, noting that the robbery suspect who lived there was already arrested and behind bars. The chief said BART police officers, like their counterparts in agencies around the state, are qualified to do probation searches.

SWAT team used earlier

But for years, the department's SWAT team had been deployed to search residences in instances in which the risk for danger was considered to be significant, sources said. On its website, BART states that before searches are undertaken, the agency evaluates the circumstances to see if there is a "high potential for violence" that necessitates the SWAT team.

"There was a protocol matrix that was created to determine risk factors when planning a potentially high-risk search," said a source familiar with department procedures, citing a practice that is common in law enforcement agencies. "If the numbers exceed a certain threshold, then SWAT is deployed with detectives."

Another source familiar with BART police operations said, "We just used the SWAT team because other people in the department just don't get a lot of experience searching residences. We used the team because they work together, they've got additional training, and it just made for a lot less stress for the team to do it. We used the team. That's what we have the team for."

But after Rainey selected Smith -- who was known as "Tommy" -- to head the detective unit three years ago, Smith requested help from the SWAT team on multiple occasions, sources said. They said he was turned down by Deputy Chief Ben Fairow, who headed operations at that time. There's no indication that any problems cropped up during those past searches.

Fairow, a veteran of the Oakland Police Department who joined BART in 2011, said in an interview Friday that he was "not rejecting" assertions that he routinely rejected the use of the SWAT team. "There very well may have been instances where I said no," he said.

But Fairow said, "There's an evaluation that is done on these types of things, to some extent, always. I don't know that I can speak to a specific case. If there's a specific case where something went wrong or something like that, maybe somebody can point it out and I can speak to that, but I have no knowledge of any."

Fairow added that such evaluations of risk occur "in everything that we do."

Sources have told The Chronicle that Smith, 42, of San Ramon was shot once in the chest after Maes momentarily regarded his colleague as an armed threat. Three detectives in plainclothes had entered the apartment, along with two uniformed BART officers.

The sources said the circular layout of the ground-floor, 723-square-foot apartment at the Park Sierra complex on Dougherty Road appeared to be a factor in the case. The bathroom of the unit had two entrances -- one connecting it to a laundry room near the front door and the other to a corridor at the rear of the bedroom with closets on both sides. Smith and Maes had separated during the search, sources said.

Seeking stolen property

Police officials have said the BART officers went to Dublin to conduct a probation search in hopes of recovering stolen property. The apartment belonged to 20-year-old John Henry Lee, a robbery suspect who was already in custody, having been arrested five days earlier after police say he led San Leandro officers on a chase to Oakland in a car stolen from a BART parking lot.

The sheriff's office, BART police, the Alameda County district attorney's office and the BART Office of the Independent Police Auditor are investigating the incident. Among other things, the probes will look into whether police followed proper policies and procedures and had adequately trained and prepared for the search.

BART detectives did just 18 probation searches last year, officials said. In 2010, a BART auditor questioned whether the agency should dissolve its SWAT team because it was so rarely deployed, instead contracting with local police SWAT teams.

Yet, auditors noted in a report, having a SWAT team "available across all the respective jurisdictions with a counterterrorism focus also has value. In a post-9/11 society, transit systems, which have always been a high-value community asset, have a greater degree of vulnerability."

After the shooting, Rainey instituted a new policy mandating that all searches that require BART police officers to enter homes require written approval by Deputy Chief Jeff Jennings, who succeeded Fairow as head of operations in January, before Smith was killed.

The chief has also asked the U.S. Department of Justice to help BART make sure it had proper procedures for conducting searches, for using force against suspects and documenting those incidents, and for deploying body cameras.

Sources have told The Chronicle that Smith's shooting wasn't captured by body cameras, which are issued to all BART officers up to the rank of sergeant, because three detectives in the apartment weren't wearing the devices and two uniformed officers didn't activate theirs.

'He's done all that stuff'

Smith's brother, Newark police Officer Patrick Smith, said in an interview that he was unfamiliar with BART police procedures. But he said his brother, a former K-9 officer, "was experienced in building searches. He did house searches. He's done all that stuff in his career. Tommy knew what he was doing.

"I don't know what to think. I don't know what happened. I have as many questions as everybody else has," Patrick Smith said. If his brother had indeed raised concerns about building searches, he said, he did so "for a reason."

Copyright 2014 - San Francisco Chronicle

McClatchy-Tribune News Service

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