The Army has dismissed a long-running desertion case against a veteran Joint Base Lewis-McChord Army Ranger who spent more than a year in jail after military police illegally searched his Tacoma apartment.
An Army judge’s decision late Tuesday gave Staff Sgt. Brian Schwisow his first night of freedom since he was taken into custody in June 2014.
The veteran of six combat deployments was apprehended after a team of at least six military police officers followed Schwisow’s apartment building manager into his home without a warrant while aiming to arrest him on suspicion of desertion and drug-related charges.
Agents and prosecutors left no doubt in court this week that Army police erred when they walked into Schwisow’s apartment with their guns drawn.
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“You didn’t have the authority to go into his apartment, did you?” Army Judge Col. Jeffery Lippert asked the senior Army drug suppression officer who participated in Schwisow’s arrest.
“No sir,” agent Jennifer Acevedo replied in court at a pretrial hearing.
That error, though serious, was not the reason that Lippert dismissed the six criminal charges against Schwisow.
The dismissal centered on delays that have kept Schwisow in confinement for 489 days while awaiting a trial for desertion and narcotics charges.
He was accused of being absent without leave, having an intent to sell drugs, using methamphetamine and steroids and disobeying an order.
The case appeared to have stalled for months while attorneys tried to negotiate a plea deal. It was hard to tell in court what happened because the prosecution and defense teams have changed since the Army first filed charges against the soldier.
“The government let this happen,” Lippert said.
The judge’s ruling leaves room for prosecutors to refile charges against Schwisow.
He first came under suspicion of drug use by leaders in his Special Operations unit after he returned from his sixth deployment as a medic with the 2nd Battalion, 75th Ranger Regiment.
“Brian really is a hero who had some challenges stemming from his service,” said his defense attorney, Mike Berens.
At the time of his arrest, Schwisow was a well-regarded medic who had proved himself repeatedly in Iraq and Afghanistan, one of his former officers said.
“He was on the way up and we wanted to get him back on the right path,” said Maj. Thomas Whitfield II, who commanded the Ranger battalion’s headquarters company at the time and served with Schwisow in Afghanistan.
Based on Schwisow’s behavior and appearance, Whitfield ordered him to take a drug test in February 2014. Schwisow took the test, but deserted a week later, according to court testimony.
During his absence from the Ranger battalion, a soldier who twice tested positive for meth use told Army police she had used the drug with Schwisow. Her allegations prompted the Army Criminal Investigative Division to start building a case against him.
Officers tried three times to observe Schwisow’s apartment and lure him out in public, where they might have arrested him on suspicion of being absent without leave.
They were ready to give up late on the night of June 3, 2014, when their final attempt to get Schwisow out of his building failed.
At the time, eight to 10 agents lingered in Tacoma’s Pacifica Apartments on South Pine Street. They had slipped past security doors and gates by following residents and cars inside.
Their presence caught the attention of residents, who complained to the property manager.
Another resident told the manager she smelled smoke near Schwisow’s apartment. Lindy Harvey, the manager, took the complaint as a reason to inspect Schwisow’s apartment.
She consulted with the Army police officers, who told her why they were in the apartment complex.
She had no problem with the Army agents following her, assuming they had authority to enter a military service member’s home without a warrant. They did not have that mandate.
“I believed in their activities they were doing what they were supposed to do, and therefore I didn’t think I was in any violation,” Harvey testified.
Inside, agents found Schwisow with his hands up. The property manager and agents noticed he had what appeared to be drug paraphernalia, including a pipe and syringes.
Schwisow in court said he asked for a lawyer and to see a warrant.
“They said, ‘We’d don’t have a search warrant. We’re just here looking around and we saw smoke coming out of your window,’ ” Schwisow testified.
In court, none of the agents who testified said they smelled or saw smoke. Only the property manager maintained she smelled something funny, though she did not characterize it as smoke.
Schwisow spent that night in jail. Since he’s been in custody, he’s been held either at the jail on JBLM or a mental health treatment program in North Carolina.
“He seems in good spirits,” Berens said Wednesday. “These next few days will be a huge change, going from 480 days of confinement to freedom is a huge transition.”