Lawyer: Police search of condo after fire was illegal | AspenTimes.com
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Lawyer: Police search of condo after fire was illegal

Naomi Havlen
Aspen Times Staff Writer

The lawyer for a man accused of having five pounds of marijuana contends a search by local police of the suspect’s apartment after a fire was unconstitutional.

And John Van Ness, attorney for Aspen resident Barney Oldfield, had a similar case dismissed by a judge in Garfield County last year.

Van Ness filed a motion to suppress evidence that was found by police, who had a search warrant, after a blaze destroyed two units at the Aspen View condominiums in June. All of the units were damaged by smoke and water, and residents may not be able to return until November.

According to the search warrant, police found about five pounds of marijuana in Oldfield’s apartment. But Van Ness claims police conducted an illegal search.

It’s an argument Van Ness said he’s used successfully before.

In May 2002, police and fire officials in New Castle responded to a home that was fully engulfed in flames. When police found a substantial quantity of marijuana plants along with grow lights and watering systems, homeowner Robert Sheeran Haines III was charged with felony cultivation of marijuana and possession of marijuana with intent to distribute.

But Van Ness helped Haines fight the charges in court. The attorney said fire officials determined the house fire was started by a gas grill outside of the home, and a police officer followed an extension cord from outside the home to a crawl space where he found a “marijuana plantation.”

“Judge J.E. DeVilbiss [of the 9th Judicial District] agreed that the search was inappropriate,” Van Ness said. “it’s not unusual for cases to be thrown out for illegal search.”

In the case of Oldfield’s apartment, Van Ness said that police had no right to go in his living room and open desk drawers and closed containers. Pitkin County Assistant District Attorney Lawson Wills was not available for comment Wednesday, and Aspen police investigator Jim Crowley, who performed the search, declined to comment.

The fire began on Oldfield’s third-floor balcony, fire officials have determined, and was caused by a person.

Oldfield said the police “had no business searching places where the fire didn’t start,” which he claims was “obvious right off the bat.”

According to Crowley’s affidavit for a search warrant, the investigator said he saw a half-gallon Zip-Loc bag containing suspected marijuana in Oldfield’s apartment and other drug paraphernalia. The items were apparently out in plain sight, though the affidavit isn’t entirely clear where the evidence was found.

In his motion to suppress, Van Ness cites two precedent-setting cases. The first is a decision from the U.S. Supreme Court in 1984, ruling that police cannot search a home unless they have a warrant issued on probable cause that includes evidence of criminal activity.

The second is a decision by the Colorado Supreme Court in 1995, stating specific limits on what police and firefighters can do in a home when there is a fire, he said.

Oldfield’s motion hearing is scheduled for Sept. 15 at 3 p.m.

[Naomi Havlen’s e-mail address is nhavlen@aspentimes.com]


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