Schutter defense: Suppress text messages
August 28, 2010
ASPEN – The attorney for a suspected drug dealer is arguing that an Aspen police officer’s unconstitutional search of the defendant’s cell phone text messages led to his arrest in February 2008.
An evidence suppression hearing was held Friday in Pitkin County District Court in the drug distribution case of Devin Schutter, 31, of Aspen. But if Judge James Boyd, who took three suppression motions under advisement, dismisses the evidence, the prosecution’s drug distribution case against Schutter would lack the teeth to move forward. Boyd denied one motion to suppress statements Schutter made to a police officer before his arrest.
Schutter’s attorney, Kevin McGreevy of Denver, argued in court Friday 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.
Schutter had left this cell phone at The Aspen Store, whose management contacted police about the item. 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,” a reference to cocaine; another said, “How much for 2 8s?”, in reference to an eight-ball of cocaine, which is one-eighth of an ounce of the substance. 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 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.
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The entire string of events, McGreevy argues, would not have occurred had Burg not illegally viewed Schutter’s text messages.
“It’s an unconstitutional search,” McGreevy told Boyd, continuing that “the search of the home is predicated on the iPhone search, and the search of the iPhone is predicated on Burg’s initial search … it was a domino effect in terms of the evidence in this case.”
Prosecutor Arnold Mordkin, in Friday’s arguments, disagreed, arguing that Burg was simply trying to find out who owned the phone and as a matter of happenstance, came across the text messages.
“The issue is did Mr. Burg conduct a permissible search, and we would submit he did,” Mordkin said, contending that Schutter “abandoned” the phone and “there never was an expectation of privacy.”
The drug distribution case isn’t the only one against Schutter. He also stands 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.
All told, Devin Schutter could spend decades in prison if convicted as charged.
His next court appearance is scheduled Sept. 20 in Pitkin County.