Judge mulls ruling on drug search | AspenTimes.com

Judge mulls ruling on drug search

John Colson

A judge last week declined to rule on a case that he said is “a little more subtle” than he had originally realized.

And, if the judge’s statements from the bench on Friday are any indication, he may end up ruling against local police and in favor of a local man accused of possession of drugs.

Ninth Judicial District Judge J.E. DeVilbiss, at hearing on Dec. 6 in the Pitkin County Courthouse, was asked to suppress evidence in a drug arrest. The defendant in the case, Thomas Colver, maintains that the search that turned up the drugs was not a legal one.

Colver, 19, was arrested on Aug. 14. He was a passenger in a car stopped that was allegedly spotted speeding down Independence Pass.

Colver was searched by police, who believed some occupants of the car were had been involved in local armed robberies. He was charged with possession of marijuana and psilocybin mushrooms that police said they found during the search.

Police officers testified on Dec. 6 that Colver and the others in the car – including the driver, Anthony Rizzuto, also 19, were considered suspects in a series of local armed robberies, and undercover officer Brian Heeney suggested that the police at the scene of the Aug. 14 traffic stop search for guns.

While searching Colver, according to Aspen Police Officer Bill Linn, he discovered a baggie of pot hidden in one of Colver’s socks. While later searching the car, Linn testified, he found a quantity of psilocybin mushrooms.

“Our position is that the search was certainly justified,” said Deputy District Attorney Lawson Wills during Friday’s court hearing.

Defense attorney Walt Brown argued on Dec. 6 that the police officers found no guns and so had no right to arrest Colver when they felt a soft lump of material under his sock that obviously was not a weapon. And, Brown argued, the police further had no right to search the car, since they found no weapons on the individuals.

“I just realized, when I read the cases [submitted by the attorneys to back up their arguments] that it was a little more subtle than I had thought,” DeVilbiss said of the case.

“It was a traffic stop and that’s all it was,” DeVilbiss said of the incident that led to the arrest, noting that he had heard no evidence of “any furtive gestures” or other activity by those in the car that may have sparked police suspicions.

DeVilbiss also said he was “distressed” by Officer Linn’s testimony that he knew instantly that the lump under Colver’s sock was a baggie of marijuana.

The judge said it troubles him any time someone says he or she “is just absolutely certain that they know something,” maintaining that it would be more “prudent to state a suspicion and a reasonable basis for that suspicion.”

DeVilbiss said he would accept any further case law that Wills or Brown cared to submit to him, and would rule on the case at a hearing on Dec. 20.

“The right to be free from unreasonable searches and seizure is an important right,” the judge added.


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