Judge to rule on Aspen LSD arrest
August 4, 2009
ASPEN – A judge Monday took under advisement a motion to suppress evidence used in the Thanksgiving Day arrest in Aspen of a man charged with possession of LSD and marijuana.
James Joseph Potter is charged with felony possession of a schedule-I drug (LSD), and misdemeanor counts of resisting arrest, possession of marijuana and possession of drug paraphernalia.
His attorney, Lawson Wills of Glenwood Springs, argued in a suppression hearing in Pitkin County District Court that the arresting officer, Aspen police Detective Chris Womack, did not have probable cause the night Potter was cited; thus, his constitutional rights were violated.
Womack testified he was doing a “walk-through” of the Regal Watering Hole the night he made the arrest at the downtown nightclub. There, he noticed the scent of marijuana, which led him to Potter. Potter, upon seeing Womack, allegedly tried to conceal a plastic baggy. Suspicious, Womack approached Potter, and the two went to the ground. Womack subsequently seized a bag of pot and some sugar cubes laced with LSD, the officer testified.
Wills, however, argued that Womack did not have sufficient probable cause to conduct the take-down and search at the crowded bar.
“He clearly did not have probable cause,” Wills said, adding that the marijuana was “green” and “not burning.”
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“You don’t have marijuana burning,” Wills said. “At best you have the smell of green marijuana.”
Assistant District Attorney Arnold Mordkin disagreed, arguing it would have been pointless for Womack to get a warrant to search the suspect.
“You don’t get a search warrant to get a baggy with what you think has contraband in it,” Mordkin said.
District Judge James Boyd said he would need some time to review case law before he renders a decision. At issue, the judge said, is whether the “totality of the circumstances rises to the level of probable cause.”
Boyd noted that Womack had “reasonable suspicion,” chiefly because the detective testified that when he made eye contact with Potter, the suspect tried to put the baggy in his pocket.