Search warrant released in Sears' death investigation

By: JO MORELAND - Staff Writer | Monday, August 2, 2004 9:48 PM PDT ∞

CARLSBAD ---- In court documents released Monday in Indio, law enforcement authorities said that 17-year-old Ben Fogelstrom gave conflicting information about the disappearance of his friend, Eric Sears of Carlsbad.

Volunteer searchers found 17-year-old Eric's body July 23 on a hillside about 1.5 miles from the Joshua Tree National Park Campground where the two friends had set up camp on July 14.

Riverside County sheriff's Sgt. Earl Quinata said Monday that Ben was "a focus and never a suspect" of an investigation that is still continuing into Eric's death.

No cause of death has been determined.

"(Ben) has never been a suspect and he's not one now," Quinata said. "That doesn't change just because we have an affidavit. You are looking at what we were basing this search warrant on."

Authorities have said there was no trauma visible on Eric's decomposed body.

An affidavit was filed July 19 in Superior Court in Indio seeking a search warrant for the Fogelstroms' Carlsbad home four days before Eric's remains were discovered. Homicide investigator Gary LeClair of the Riverside County Sheriff's Department said at that time that he wanted the warrant "for evidence of a murder."

The affidavit is not evidence but is justification for a search warrant.

Ben, dressed only in boxer shorts and not knowing where his clothes were, reported his friend missing on July 15, according to the affidavit.

During questioning on July 18 at the sheriff's San Bernardino office, the Superior Court document said, Ben first said Eric disappeared in the park after they drank tea they made of Jimson weed, an hallucinogenic drug, at their Jumbo Rocks camp site.

"(Ben) said he spoke to a bush, an Indian and possibly Sears, but he could not recall if Sears was in fact present or a hallucination," the affidavit said.

The affidavit said Ben later broke down crying during a polygraph test, saying he and Eric had argued because the keys to Eric's truck were lost. When he awakened later in the tent, Ben told authorities he found Eric blue and lying face down without a pulse, according to the affidavit.

"Fogelstrom said he carried Sears to a toilet and placed him inside," said the affidavit.

The warrant sought DNA samples, notes, correspondence, anything that would show who controlled the Fogelstroms' home, clothing, a Bowie knife, and all shovels and digging instruments and any receipts for them.

The items taken from the Fogelstrom home during the July 22 search included a white cloth with a possible blood stain; a pair of blue boxer undershorts; a Bowie type knife; letters; handwritten notes; a phone list from a refrigerator; a payroll stub made out to Ben; a pipe, papers and empty baggie; and a bedroom door and computer equipment, according to a list in the search warrant file.

The Sears family declined Monday to talk about the search warrant information.

"We're not commenting on the investigation," said Eric's father, Tom, at the front door of the home amidst floral bouquets and poetic and photographic tributes to his deceased son.

An affidavit is something prepared to persuade a judge that there are grounds to issue a search warrant, said Brad Patton, the Fogelstroms' attorney.

"Statements are put in those things (search warrant affidavits) that tend to be out of context," said Patton. "The statements in the report are just woven out of whole cloth and completely taken out of context."

Citing one example, the Carlsbad attorney said the affidavit stated that Ben's father, Joseph Fogelstrom, claimed to be a search and rescue team member in order to get into the search area and then he removed a Bowie knife from Eric's truck.

Joseph Fogelstrom was very concerned that the search wasn't comprehensive, and he was told by an officer that he could take the knife while he was trying to find Ben's wallet in the truck, Patton said.

In addition, he said, the affidavit noted there was blood on Ben's shorts and that he had a small scrape on his knee. The affidavit doesn't say that paramedics treated Ben because he had fallen on rocks, Patton said.

A polygraph examination is an interrogation technique that isn't conducted for truthfulness, said the lawyer. He said police are allowed to lie while questioning someone, and that "they became very accusatory" when questioning Ben.

Joseph Fogelstrom said his "concern is for my family and the Sears family, not to be angry and not to point fingers."

He said he hasn't seen the search warrant documents, but they seem to be pulling information "from an illegal and very badgering interrogation of my son" that was put together under false pretenses.

After the four-hour questioning, Fogelstrom said, his tearful son went to his mother in the sheriff's lobby, telling her, "They made me say stuff, and it's not true."

"If they wanted to search our place, they could have come out any time," Joseph Fogelstrom said.

Staff writer Ben Frumin contributed to this story.

Contact staff writer Jo Moreland at (760) 740-3524 or jmoreland@nctimes.com.

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