Ex-prosecutor: Deputy lacked authority in search Deputy lacked authority in search, ex-prosecutor says

A Harris County sheriff's deputy did not have the authority to go to the home of a man who had photographed an officer at a drug raid or to destroy film in that man's camera, a former local prosecutor testified Thursday.

The testimony surfaced in U.S. District Judge Kenneth Hoyt's court, where a jury is considering a civil rights lawsuit filed by brothers Sean and Erik Ibarra, who were taken to jail six years ago on charges of resisting arrest, but later cleared of any wrongdoing. The Ibarras are suing the four deputies involved in their arrests, Sheriff Tommy Thomas and Harris County for $5 million.

The brothers were arrested at their southeast Houston home on Jan. 4, 2002, when Sean Ibarra took pictures of an officer during a drug raid at their next-door neighbor's house after a neighbor asked him to document how deputies were treating the children there.

The Ibarras allege the deputies then burst into their home without a warrant and arrested them without probable cause, destroying film in their camera and yanking the memory stick out of a videocamera. An attorney defending the deputies told jurors the undercover officers feared such pictures could expose their faces to the public and endanger their lives.

Former Harris County prosecutor Jennifer Cook, one of two assistant district attorneys who prosecuted the Ibarras six years ago, told jurors Thursday she did not refer the officers' actions to the Harris County District Attorney's police or public integrity bureaus for investigation after learning one of them had destroyed film that could potentially be used as evidence in her case.

But during repeated questioning by the Ibarras' attorney, Lloyd Kelley, Cook agreed the deputies did not have "reasonable suspicion" to pursue Sean Ibarra that day or lawful authority to destroy film in his camera.

Still, she stopped short of calling the deputies' actions criminal.

"This is more from the standpoint of a Fourth Amendment violation ... It's an unlawful seizure," Cook said. "I wouldn't call it a theft."

Cook, who now works for the U.S. Customs and Border Protection in Del Rio, is expected to return to the witness stand again on Friday.

In earlier testimony, the former commander of the multiagency task force conducting the drug raid that day agreed it is not illegal to take pictures of undercover officers.

"I think it was a mistake in judgment and that's what it was," Baytown police Capt. Roger Clifford said reluctantly of the deputies' actions at the Ibarras' home.

Clifford denied the task force had a policy of seizing film from citizens. He could not recall hearing about any other incidents where bystanders took pictures of the task force's officers.

peggy.ohare@chron.com