Judge suppresses key evidence in Aspen drug case
September 21, 2010
ASPEN – Key evidence in the case against suspected drug dealer Devin Schutter was dismissed Monday when a district judge ruled that the defendant’s right to privacy was violated when a police officer read allegedly incriminating text messages on Schutter’s cell phone.
Judge James Boyd upheld three motions to suppress evidence. They were filed by Schutter’s defense attorney Kevin McGreevy, who argued that then-Aspen police officer Matt Burg violated Schutter’s Fourth Amendment rights – unreasonable search and seizure – after he obtained Schutter’s cell phone in the early morning hours of Feb. 18, 2008.
Boyd’s ruling means the prosecution cannot use critical pieces of evidence in the case against Shutter: the allegedly incriminating text messages that led to the issuance of a warrant to search Schutter’s home, where police say they found multiple bags of cocaine along with drug scales, paraphernalia and other items. With Boyd’s ruling, that evidence is no longer admissible in court.
Schutter’s next court appearance is set for Nov. 1.
“I have a pretty good idea how the people will proceed,” Prosecutor Arnold Mordkin told Boyd. He did not elaborate.
While Boyd’s ruling put Schutter in a good position to avoid prosecution for the February 2008 incident, he still faces numerous charges from prior alleged transgressions. Schutter is accused of numerous felonies, ranging from drug possession with intent to distribute to probation and parole violations from earlier cases. He is also accused of distribution of a Schedule I controlled substance in Fremont County. That is connected to an alleged prison drug-distribution ring he ran with his brother, Stefan, an inmate at Four Mile Correctional Facility in Canon City.
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Meanwhile, Boyd said that, while there’s no Colorado case law that pertains to the cell-phone issue, his decision was based on case law from other states and the fact that “I do conclude Mr. Schutter had a reasonable expectation of privacy for his phone.”
Mordkin had previously argued that Schutter was not entitled to privacy because he had “abandoned” the cell phone. But Boyd noted that Schutter had simply left it in a locked bathroom at the Aspen Store and was unable to retrieve it because the management was too busy to immediately help him at the time. The store’s management later contacted police about the phone, and Officer Burg retrieved it.
As Burg tried to see who the Apple iPhone belonged to, he discovered two text messages that apparently implicated Schutter.
One message said, “Sup son U got that cake,” an alleged reference to cocaine; another said, “How much for 2 8s?”, an apparent reference to one-eighth of an ounce of cocaine. The eight-ball message was left on Schutter’s phone approximately a month earlier; McGreevy contended that Burg had to scroll through Schutter’s messages to find the incriminating one.
Burg later determined Schutter owned the phone, and the officer obtained a warrant to further search Schutter’s phone, as well as a search warrant on Schutter’s mother’s Aspen home, in which the suspect lived in an accompanying unit. After executing a search warrant on the home, police said they found multiple bags of cocaine, along with drug scales, paraphernalia and other items in Schutter’s unit. Schutter was then arrested on Feb. 20 – two days after he lost his phone at the Aspen Store.
The entire string of events, McGreevy had argued, would not have occurred had Burg not illegally viewed Schutter’s text messages.