The question in front of the 8th Judicial District Court in the case of former police chief John Matula and Assistant Police Chief Curtis Tyra is whether or not they had authority to enter a condemned property.
Summonses for Matula and Tyra to appear in court on Oct. 14 were issued Sept. 8. Both are charged with misdemeanor trespassing and Matula is charged with misdemeanor damage to property. Matula has since resigned as chief but he and Tyra will fight the charges. They both maintain they were acting within the parameters of the law.
According to an affidavit the charges stem from when, on May 18, Matula, Tyra and Herington Fire Chief Andrew Avantagiato entered a condemned property on 13th Street. Prior to the city hiring a codes enforcement officer Avantagiato filled that role.
Avantagiato told Kansas Bureau of Investigations Special Agent Samuel Riffel that he had condemned the property in March. Several times the signage on the house was removed and he believed people continued to live there.
On May 18 he requested Matula check the premises and ensure no one was there when he and Crystal Parris, the city’s new codes enforcement officer, reposted condemnation signs.
According to the affidavit, Avantagiato said he had concerns about going to the residence because of suspected drug dealing. The day he had condemned the property a search warrant was issued and a gun and narcotics were seized.
Avantagiato also told Riffel he had the authority as the City of Herington‘s health officer to enter the premises for inspection without an owner‘s permission or search warrant. Herington City ordinance only states that inspections have to be done during reasonable hours. It was about 9:50 a.m. when they went there.
Riffel points out in his affidavit that the ordinance also states that an enforcing officer has, “Authority to enter upon premises at reasonable hours for the purpose of making such inspections. Entry shall be made so as to cause the least possible inconvenience to any person in possession of the structure. If entry is denied, the Enforcing Officer may seek an order for this purpose from a court of competent jurisdiction.”
Tyra said the way the ordinance is worded they had the authority to enter.
“If you look at the Herington Municipal Code, it says the health officer or his representative has the authority to go in there,” Tyra said. “It says if no one answers the door the agent may request a warrant. It doesn’t say shall and that is important because in the state of Kansas ... if a law or a code doesn’t say shall, you don’t have to do it.”
When Matula and Tyra went to the residence they noticed lights on inside the residence which indicated to him someone was inside. Matula said they were at the back door of the residence because the last time they had been there the front door was barricaded. When they did not get a response to their knocking Matula forced the door open by kicking it, according to the affidavit.
Damage to the door in the amount of about $100 is the basis for the damage to property charge.
Matula and Tyra have said they plan to fight the charges and believe case law allowed them to enter condemned property to search for people.
“We believe that we were acting under the auspices of the code enforcement and we wouldn’t have been there if it wasn’t for their requesting our assistance,” Matula said.