Judge rules in favor of police in apartment search
Aspen Times Staff Writer
A judge ruled last week that most of the evidence found in an apartment after a fire this summer can be used to prosecute the apartment’s owner on drug-related charges.
Barney Oldfield, 51, is charged with distribution of marijuana, possession of more than 8 ounces of marijuana and possession of drug paraphernalia. Police allegedly found marijuana and paraphernalia in his apartment after a fire in the Aspen View condominiums on Midland Avenue.
The fire was later determined by fire officials to have started on Oldfield’s third-floor balcony. After allegedly seeing the paraphernalia in his apartment during the course of the fire investigation, police obtained a search warrant to further investigate the residence.
During a hearing on Dec. 15 in Pitkin County District Court, defense attorney John Van Ness attempted to prove that police had unconstitutionally searched his client’s apartment after the fire. In August Van Ness filed a motion to suppress the evidence found during the search.
But Judge James Boyd ruled that besides one item, the discoveries police made in Oldfield’s apartment were the result of “plain view observations made in the course of legitimate firefighting and fire investigation.”
The exception is a cigar box and its contents that police testified was located on a shelf beneath Oldfield’s coffee table. Although police said they did not open the box, Boyd questioned one officer’s reasons for searching in that part of the home when the fire was determined early on to have not started in that portion of the residence.
“Discovery of the evidence must be inadvertent,” and the object in plain view must have a “readily apparent incriminating nature,” Boyd wrote.
The cigar box allegedly contained rolling papers, marijuana cigarettes and a bag of marijuana, and Judge Boyd ruled that both the box and its contents were not in plain view. The deputy that found them had to crouch and peer under the coffee table top in order to see them there, the judge noted.
“The Court cannot find the cigar box and its contents were constitutionally discovered,” the ruling reads.
As a result of the hearing, Boyd reviewed the original search warrant excluding the cigar box and its contents, and he ruled that the alleged various packages of marijuana in the apartment as well as a scale, the paraphernalia and the “voluminous packaging material” was sufficient evidence for the warrant to be granted.
Other evidence allegedly found in the home included a bong that was found sticking out of a bag and an open plastic box that included rolling papers and lighters. Also alleged in the case were vials that contained marijuana cigarettes and baggies that had marijuana residue found on top of Oldfield’s coffee table.
[Naomi Havlen’s e-mail address is firstname.lastname@example.org]
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