District Attorney never received audit outlining mismanaged evidence at Southport Police Department

Evidence was routinely stored in the trunks of officers' cars rather than in evidence lockers, auditors also reported.

February 8, 2019

BRUNSWICK COUNTY — Despite evidence mishandling – described by an official as "sloppy" – Brunswick County's District Attorney's Office has not contacted the Brunswick County Defense Bar about cases that may have been impacted by the failings of Southport Police Department's former leadership.

Those failings were detailed in a police audit, released in early December, which cited a cultural climate of mishandling evidence that existed inside Southport Police Department under former Chief Gary Smith.

Among other issues, auditors found blood samples stored in the freezer of an office refrigerator, next to food, and a firearm from a suicide case and a sexual assault kit improperly stored in an officer's office. Evidence was routinely stored in the trunks of officers' cars rather than in evidence lockers, auditors also reported.

Conducted by U.S. ISS Agency, LLC, the audit was performed in response to the arrest of Southport's two top-ranking officers: Police Chief Gary Smith and Lt. Michael Simmons. Following a joint investigation by the State and Federal Bureau of Investigation, both men were arrested and charged with crimes in July 2018 relating to their role in running a second job while on the clock, leaving the department unsupervised for months.

Mishandled evidence

The District Attorney's office is prosecuting its case against both Smith and Simmons. According to Ashley Bullard, spokesperson for the 13th District Attorney's Office, the SBI is still working to turn over its file.

Still, prosecutors are privy to information about the department's former misdealings. It's not clear whether the DA's office is already aware of information found in Southport's internal police audit over the course of its own investigation. Asked about information in the audit, Bullard said questions about it would not be appropriate since her office had not seen it.

The 32-page report describes a department that routinely mismanaged evidence. Findings in the report show mishandled evidence that reaches beyond Smith and Simmons' alleged crimes.

• When an officer uses force, like firing a taser, multiple pieces of evidence including probes, cartridges, and darts, are considered evidence. Auditors found these items in an officer's desk.
• Officers are required to turn in evidence to one of three evidence lockers at the end of their shift, the report states. But officers frequently secured evidence in the trunks of their vehicles for days at a time, because the lockers were full.
• Policy requires perishable evidence, like blood, to be transported to an SBI lab as soon as possible. Auditors found two-year-old DWI blood samples outside the lab, in the freezer of a fridge in the police department. The samples were next to employees' frozen food, which created a biohazard, the audit states.
• Multiple items of evidence, including an "unsecured box of evidence in a suicide case" with a firearm, a bottle of liquor, a sexual assault kit and drug evidence, were all found in an officer's office. The items were never properly transported for long-term storage, the audit states.
• Inside files and drawers in the "patrol office area," auditors found more evidence: an unmarked bag of what appeared to be marijuana and a glass pipe.
• A diamond ring was found on the chief's desk, with no associated property report. Auditors reported most found property had never been entered into the property system.
• Evidence stored outside the vault, in someone's office, was often accessible, the audit found. Large evidence that could not fit inside the lockers was stored in the patrol office, accessible to "anyone there."

In U.S. ISS Agency's final recommendations, auditors suggested an overhaul of the department's evidence handling system, with training required for remaining officers. Police headquarters have since been relocated to City Hall on Howe Street.

The city's new police chief, former Aldermen Todd Coring, took over in October. As one of his first actions as chief, Coring reset the rank of all remaining officers, effectively demoting three individuals.

The Brunswick County District Attorney's Office never received the audit and has made no public comment — a very different reaction than last month, when questions about potential mishandling of evidence at the Wilmington Police Department pushed the New Hanover County District Attorney's office to take action.

Wilmington's chemist

On Jan. 25, Wilmington Police Department (WPD) announced the termination of its police chemist, William Peltzer. Peltzer, 32, was fired after an internal affairs investigation found him in violation of multiple departmental policies relating to "paperwork irregularities." Though the department accused Peltzer of no criminal wrongdoing, evidence may have been compromised. Wilmington's Chief of Police, Ralph Evangelous, said the department is working with the District Attorneys office to ensure the integrity of current and future drug testing.

Prior to WPD's announcement, New Hanover County District Attorney Ben David sent out a letter to the New Hanover County Defense Bar.

David wrote his office had become aware of Peltzer's "untruthfulness" in his role as police chemist. For over three years, Peltzer's duties included testing substances to determine if they were narcotics. He failed to calibrate equipment used for this purpose, according to David, and lied about checking it when asked.

This revelation opened up a vulnerability in pending and disposed of cases. Because of this, David said his office was actively reviewing cases that may have been impacted. He also called on criminal defense attorneys to bring cases that may have been impacted by Peltzer's testing to the District Attorney's Office's attention.

When asked about whether the Brunswick County District Attorney's Office had similarly informed criminal defense attorneys about Southport Police Department's mismanagement, a spokesperson said no.

"No blanket letter was sent out," Bullard said. "In regards to sending a letter, there wasn't a need to, just because there wasn't a mass number of cases that would have been affected and the evaluation of each particular case would have been on its merits, like any other case."

Released on Dec. 14, 2018, the audit was not sent to the District Attorney's Office. It was intended as an internal, administrative report for Southport, Bullard said.

Accusations about police misconduct were made public at the time of Simmons' and Smiths' July 2018 arrest. At the press conference, held at the same time as Simmons' arrest, District Attorney Jon David said he had been aware of issues at the department since April 2018.

David described Smith and Simmons' persistent and repeated absence on the job as a morale problem. But that morale problem extended into the department, David acknowledged, and into cases within the criminal justice system as well.

"I've already put in place a process to systematically review the pending cases that we have from the city of Southport to ensure that all of those cases rest on firm footing," he said at the press conference. "To the extent that any of them need additional investigation because they weren't appropriately handled, I know the sheriff's office will be assisting us in completing those tasks."

Though David's office was sensitive to the potential for cases to be re-examined, he said he did not believe it was the case at the time. Since the day of the arrests, David's office has not announced any further information regarding cases potentially impacted.

Former chief Smith was the third police chief David oversaw the arrest of during his time as District Attorney.

'Not much violent crime'

Southport did not report crime data in 2010, 2013, or between 2015 and 2017, the audit found. In 2009, the department reported 12 violent crimes, one rape, one murder, five aggravated assaults, and five robberies. Compared to the years with reported data, 2009 stands out.

"There actually were not a lot of felony cases that were charged by Southport that we even had pending," Bullard said. "Most of them were sort of, road patrol-like, run of the mill-like, kind of misdemeanor district court cases."

Bruce Oakley, Southport's manager, said the city did not send the audit to the District Attorney's Office because it had nothing to do with Smith and Simmons' alleged crimes.

"There was maybe some sloppy evidence handling," Oakley said. "But I don't think there was anything that would have affected any cases. Fortunately, we don't have much violent crime."

At press time, Bullard had not responded to a follow-up inquiry, regarding whether or not any cases are under review.