On an October night a little more than a year ago, 38-year-old piano player Tray Boswell got off work at an Addison bar around 11 p.m. and headed home to his Plano condo. By that time, his estranged wife, Sarah Boswell, had already made several calls to the cell phone of Plano police officer Michael Kress, who was on duty that night.
Before Boswell reached his home he was pulled over by Kress and asked to step out of the car. Boswell was suspicious. He couldn't recall breaking any traffic law. What's more, he had been pulled over in this same spot—just blocks from his home—by another Plano officer just weeks before. His wife had at least one close friend in the Plano Police Department. Their divorce would become final in just a few weeks, and the fighting over custody of their two children had turned ugly. He wondered if his wife was setting him up.
Boswell says Kress asked him to step out of the car and perform a field sobriety test. When Kress told him he had failed, Boswell says he was shocked. "Which part did I fail?" he says he asked. "All of them," he recalls Kress saying. Boswell was arrested for driving while intoxicated and booked in the Collin County Jail.
Now more than a year later, Tray Boswell has filed a federal lawsuit against Kress and three other Plano police officers, alleging that on two separate occasions they violated his civil rights by pulling him over without probable cause. Boswell believes the officers colluded with his ex-wife to set him up.
"They were doing a favor for a friend," Boswell says. "They just assumed they wouldn't get caught."
The Plano Police Department would not answer questions relating to the lawsuit, nor would Paul Pierce, the attorney who has been hired to represent the four officers. It is not known whether Plano police are conducting an internal investigation into the matter, but what no one denies is that on two occasions Sarah Boswell called the personal cell phone of a Plano police officer who subsequently stopped her then-husband on a traffic violation. In fact, a source close to Sarah Boswell says that on one occasion Boswell told the officer exactly where he should be if he wanted to catch her husband driving drunk.
"Is it illegal for a citizen to call a police officer and report that someone is breaking the law? No, it's not, I've done the same thing," says Phillip Linder, a Dallas attorney who defended Boswell on the DWI charge, which was ultimately dropped. "But that's not what happened here. This wasn't someone calling 911 and reporting that some guy's intoxicated. This was a woman engaged in a bitter custody battle making repeated phone calls over a period of time to Plano police officers trying to set up her husband as a way to establish that he's an alcoholic so she can get custody of the kids.
"The whole thing just smells bad."
While Plano police would not comment on the case because of the pending lawsuit, a source close to the four officers said that on the night Tray Boswell was arrested he smelled of alcohol and an open container of beer was found spilled behind the driver's seat. The source, who spoke on condition of anonymity, also said Boswell failed the sobriety test and was taken to jail, where hve refused to take a breath test for blood-alcohol level.
But Linder says none of this is true.
"The key thing here is did they have probable cause? Well, it's easy to say they did because probable cause could be something as simple as crossing the white line. Typically, because probable cause can be challenged in court, an officer will turn on the camera on the dash to establish that the guy is speeding, or that the car was all over the road. But in this case—and the video shows this—they didn't turn the camera on until they had pulled him over."
Linder says the county was moving forward to prosecute the case until he subpoenaed Sarah Boswell's cell phone records, which established that on the night of the arrest she made nine phone calls to Kress' cell phone in a two-hour span. The phone calls begin a half-hour before Tray Boswell was scheduled to get off work and then picked back up at 11:18 p.m., which is about the time Boswell says he got off. Five more phone calls were made before 11:49, which Boswell says is about the time he was pulled over. Then there are two more calls, at 12:51 and 12:57. By that time, Boswell says, he had been booked in jail.
The records also show that when Tray Boswell was pulled over on August 29, his then-wife made four phone calls to the cell phone of Officer Scott Copeland, who conducted the stop. In this case it also appears the calls were made in the minutes before the stop and not long after.
"It's easy to see what happened," Boswell says. "My wife knew what time I was getting off work, and she knew exactly where I would be. Both times I was pulled over right in front of my house. It was clearly a set up."
Linder says that when he confronted the district attorney with the cell records, the prosecutor decided to drop the case because the phone calls "looked bad." The Collin County District Attorney's Office declined comment.
It is not clear what sort of relationship, if any, Sarah Boswell had with any of the four officers named in the lawsuit, although her ex-husband says she and Officer Michael Nunns, who is named in the suit, have been friends since high school. A source close to Sarah Boswell says that Boswell had called Plano police several times even before the couple separated because her husband had "severe alcohol problems and she was worried for his safety and the safety of their two daughters.
Boswell maintains that he does not have a drug or alcohol problem, although he was arrested in Waco in 2003 for a DWI charge (it was subsequently reduced to a reckless driving charge, a Class B misdemeanor).
Linder says this isn't the issue. The question, he says, is whether citizens should have the cell phone numbers of police officers on speed dial to carry out personal vendettas.
"Police officers have a hard job. My dad was in law enforcement. I was in law enforcement briefly. I know how hard it is," Linder says. "However, if they are going to abuse their power for the personal benefit of friends or acquaintances they should be prosecuted, not just sued, prosecuted for violating trust of citizens."