Supreme Court upholds evidence suppression in Aspen drug case
DENVER – The Colorado Supreme Court on Monday upheld a district judge’s order that Aspen police illegally collected incriminating evidence from a suspected drug dealer’s cell phone more than two years ago.
The high court’s ruling means prosecutors will drop separate felony charges of possession of cocaine with intent to distribute and possession of more than 1 gram of cocaine, and two petty counts of possession of drug paraphernalia and marijuana, against Devin Schutter, 32, of Aspen.
“We have no evidence now,” said Assistant District Attorney Arnold Mordkin.
Monday’s decision by the Supreme Court comes after Mordkin appealed Pitkin County District Judge James Boyd’s order to suppress evidence that then-Aspen police officer Matt Burg obtained from Schutter’s cell phone. Boyd suppressed the evidence Sept. 22, after Schutter’s defense attorney, Kevin McGreevy of Denver, argued Burg had illegally obtained the text messages that set off a chain of events leading to Schutter’s arrest.
According to court testimony, Burg obtained Schutter’s cell phone in the early morning hours of Feb. 18, 2008. Schutter had left the Apple iPhone in the bathroom of the Aspen Store, but was unable to retrieve it because the management was too busy to help him at the time. The store’s management later contacted police about the phone that same morning, and when Burg tried to see who the phone 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.
Armed with the text messages, police were able to obtain a warrant to further search Schutter’s phone, as well as a search warrant on his mother’s home, in which he lived in an accompanying unit. Police subsequently found multiple bags of cocaine, along with drug scales, paraphernalia and other items in Schutter’s unit. He was arrested on Feb. 20, 2008, two days after he left behind his iPhone.
In determining that Schutter’s Fourth Amendment right to privacy was violated when Burg scrolled through his text messages, Boyd suppressed all evidence collected from the search warrants.
Mordkin argued to the Supreme Court that Schutter’s reasonable expectation of privacy was diminished after he “abandoned” the cell phone. But the high court determined that Schutter’s “iPhone was neither abandoned, lost, nor mislaid such that the Aspen police would have had any cause to identify the owner to return it.”
“Whether or not he knew the defendant’s name, Officer Burg was aware from the moment the iPhone came into his possession that the defendant inadvertently left it in the store’s locked restroom and knew precisely where it was; that his immediate demand for its return had been refused by the store clerk, who controlled access to the restroom; and that he left the area only when he was told by the clerk that he would have to come back later to retrieve his phone,” wrote Justice Nathan Coats.
Coats also noted that Burg “had no grounds to believe the property’s safe return required the discovery of any further information.”
Justice Alison Eid, however, offered a two-page dissenting opinion, opining that “because the cell phone in this case was abandoned by the defendant, he had no legitimate expectation of privacy in its contents.”
She continued: “In my view, by leaving the convenience store without making any arrangements for recovery of the cell phone left in a public restroom, defendant abandoned the phone. Accordingly, I would reverse the district court’s suppression order.”
Schutter still faces numerous charges from prior alleged transgressions, 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.
Devin Schutter is due back in Pitkin County District Court on April 21.
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