WESTOVER, W.Va. — The missing phone at the center of a federal lawsuit against The City of Westover and two Westover police officers has now resurfaced, according to emails obtained by 12 News.
The phone is frequently mentioned in a federal lawsuit filed by William Cox against the city and officers Aaron Dalton and Justice Carver. The suit claims Carver and Dalton used excessive force against Cox during an arrest on August 25, 2019, which was recorded on Cox’s cellphone. Following Cox’s arrest, the phone went missing.
The recent discovery of the phone has led to a legal dispute over whether attorneys for Cox or the city should be the ones to have possession of the device. Lawyers for Cox assert that since the phone is his personal property and that charges against him were dropped, the phone should be given back to Cox. His attorneys also believe that phone’s disappearance to this point leaves them with “zero faith in (the City of Westover’s) ability to keep evidence safe on its premises.”
This week, a federal magistrate judge issued an order that a repair expert for Cox’s attorneys attempt to fix the phone, while an expert for the city watches. If the repair is successful, the judge’s order goes on to say that again, an expert for Westover can watch Cox’s expert attempt to extract the data from the phone. Once the extraction is finished, Cox’s legal team must turn over any information that is pertinent to the investigation and provide a log of other data on the phone that they believe does not need to be turned over. A copy of all of the data is to be given to the judge, in case it becomes necessary for him to review it. When all of the repairs and extraction is completed, the judge ordered that the phone be turned over to Cox and that he must preserve it and all of the data until all legal proceedings are over.
While the phone reappeared on August 7, 2021, what happened to it between Cox’s 2019 arrest and now remains a mystery.
As of a December 2020 investigation report by the West Virginia State Police’s Bureau of Criminal Investigations, the phone was never entered into evidence.
As apart of the investigation, state troopers interviewed more than a dozen people, a number of whom had some knowledge of the phone:
- Former Police Chief Richard Panico told investigators that he believes Dalton is responsible for the destruction of evidence in the Cox case. In July 2020, Panico ordered another lieutenant to do an internal investigation into Lt. Dalton surrounding the Cox incident and told Mayor Dave Johnson he wanted to suspend Dalton, to which Panico said Johnson replied: “why can’t you just make this go away.”
- Former police department secretary Christine Riley, who was responsible for submitting items into the evidence room, said she never saw Cox’s phone. ***Riley has since filed a lawsuit against the City of Westover, claiming that she was fired after joining in a letter expressing concerns about Lt. Dalton’s actions.
- One officer said he saw Cox’s phone, broken in half, in the sergeant’s office.
- Another officer recalled seeing a phone lying outside the police station, on the day of Cox’s arrest, with the screen separated.
- A third officer said the phone remained on a filing cabinet for at least a week before it disappeared and that even though the phone was snapped in half, it continued to ring. That same officer also said that he believed that additional recordings existed on Cox’s phone of other dealings between Cox and Dalton.
- Mayor Dave Johnson told investigators that Lt. Dalton admitted to him that he told Ofc. Carver that he should throw the phone away, explaining that the phone was now broken and was of no value. Johnson also told troopers that they (the City) still did not know where the phone was.
The state police investigation also included interviews with Ofc. Carver and Lt. Dalton.
- Officer Carver described the phone as being an old style flip phone, believing it to be a Motorola phone.
- Officer Carver said Lt. Dalton ordered him not to place the phone into evidence and that he would take care of it.
- Back at the police station, Carver said that Dalton took the phone from him and threw it into the grass, saying that it had pepper spray on it.
- A short time later Carver said that he tried to pick up the phone and was told by Dalton not to touch the phone. Dalton then gave Carver a direct order not to touch the phone and left it on a filing cabinet, Carver said.
- A day or two later, Carver said the phone was still on the filing cabinet and he discussed with another officer, his desired to get a search warrant so that he could download the contents of Cox’s phone. At that point, Carver said Dalton came into the room, saw him with the phone and reiterated his direct order not to touch the phone and said that if Carver touched it again, he would write him up. Carver said that Dalton then told him that he was “f***ing stupid” for wanting to download the phone’s contents.
- Later, a fourth officer asked Carver if he knew why there was a broken cell phone outside the building. Carver told investigators that he assumed that this was Cox’s cell phone and that he never saw the phone again.
- Dalton told state police that he didn’t know what happened to the phone, but that it should’ve been thrown away because Carver stomped on it during the incident.
- Dalton said that after he and Carver brought Cox to the police station, he was standing outside, talking to Mayor Johnson, when Carver came out holding Cox’s phone and asked Dalton what he should do with it, since it had pepper spray on it. Dalton said he told Carver that he might as well throw it in the garbage, since Carver had stomped the phone and that “the city would probably owe the guy a phone.”
- Then Dalton said that he did not have anything else to do with the phone and did not know what happened to it, reiterating to investigators that “the best thing that could have happened to the phone is that it was thrown into the trash.”
- Dalton went on to say that there was never a discussion about doing a forensic download and that nothing on the phone would have been evidence.
Is there other video of the incident?
After reading the reports from Cox’s arrest, Ofc. Zachary Fecsko was curious as to why the Cox’s phone was mentioned in the reports, but was not submitted into evidence. Fecsko, who is named as a defendant, along with Dalton, Panico and the city in a separate federal lawsuit, took it upon himself to get surveillance video from a business near where the Cox incident happened. In that surveillance video, Dalton is seen handing Cox’s phone to Carver, but Carver is not seen stomping on the phone, as mentioned by Dalton.
Fecsko, who told investigators that he is responsible for video and data storage for the department, placed the surveillance video in to the individual folders of Dalton and Carver.
According to Carver, during the incident, Cox wanted Dalton and Carver to turn on their body cameras, but Carver did not because he “knew how Dalton would react had he done so.”
Fecsko and a former officer said that Dalton had a rule that officers on scenes with him were not allowed to use their body cameras. Former Chief Panico said that he had also heard that, while a fourth officer reported to investigators that he had seen Dalton turn off other officers’ body cameras on three to four occasions over the years.
Fecsko also showed investigators that individual officers’ folders. Dalton’s folder had three files in it, while other officers’ folders have large amounts of files.
Dalton remains on paid leave from the department.