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Sullivan case centers on search warrants

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Thursday, Dec. 15, 2011 4:45 PM
Sullivan

The admissibility of evidence obtained through search warrants was called into question Monday in the case of a local man shot by law enforcement earlier this year.

Representing 31-year-old Zachary Sullivan, Attorney John Baxter argued the search warrants issued in the case are in violation of the defendant’s fourth Amendment rights.

“They’re going on an illegal fishing expedition,” he said. “They’re searching our homes ... It’s a snowballing effect we can’t allow to happen.”

Search warrants issued in the case were targeted at the defendant’s duffle bag, a trailer where he had stayed and his mobile phone records.

District Attorney Russell Wasley argued the court must consider the totality of the situation and uphold the validity of the warrant. He said the burden is on the defense to show a search warrant is defective, which the defense has not done.

Sullivan is charged with attempted murder for allegedly pulling a gun on local law enforcement in the early hours of March 19 of this year. The incident resulted in the non-fatal shooting of Sullivan. Officers involved in the shooting have been cleared of charges.

In Monday’s hearing, Chief Judge Douglas Walker asked both attorneys if they thought the parts of the search warrants such as the records on two cell phones reportedly found on the defendant were too broad because they requested reports for two weeks before the incident. If so, the judge asked if the entire warrant should be thrown out.

Wasley argued they were not because the records were intended to establish intent. Further, he said the defendant was reported to have been using his phone during the incident.

Baxter argued the validity of warrants should be determined when issued, and not after the fact.

Walker did not rule on the motion to suppress in Monday’s hearing at 22nd Judicial District Court.

Sullivan was also bound over Monday on an upgraded charge of possession of a weapon by a previous offender after a short preliminary hearing.

In previous hearings, Cortez Police Officer Dallas Coker testified that he responded in the early hours of March 19 to a report of an intoxicated pedestrian in the roadway. After locating Sullivan walking on the side of the road, Coker said he asked the man for his name and date of birth.

After the man’s hand lingered in his pocket after putting his phone away, Coker said he requested Sullivan submit to a pat-down search for officer safety. Coker said Sullivan then walked away, turned and pointed a gun at him. Coker and Montezuma County Sheriff’s Deputy Patrick Spencer opened fire on the man. He was airlifted to Denver where he was treated and released for multiple gunshot wounds.

Following the shooting in March, the Colorado Bureau of Investigation was called in to investigate.

According to an affidavit filed by the investigating CBI agent, a Llama 9 mm handgun that Sullivan reportedly carried was located at the scene, and the gun appeared to be jammed with a partially chambered, live round. The magazine reportedly contained eight live rounds

The agent later testified to locating seven .40 caliber shell casings — five brass and two nickel.

Both officers were carrying .40 caliber handguns the night of the incident. No spent 9 mm casings were located, but a case of ammunition and a clip were found in the defendant’s clothing.

Coker said he is uncertain if the defendant fired any rounds during the incident.

In a prior hearing, Baxter argued there were no fingerprints or DNA belonging to Sullivan on the suspect weapon. Wasley argued tests were inconclusive.

Also in previous hearings, Wasley alleged Sullivan pointed the gun at the officers in an effort to kill them. Baxter argued Sullivan was unarmed and fleeing when he was shot by police.

Sullivan remains in custody at the Montezuma County Detention Center. His next hearing is scheduled for February 9.



Reach Reid Wright at reidw@cortezjournal.com.

Video systems working in all patrol vehicles

The non-fatal shooting of 31-year-old Zachary Sullivan south of Cortez in May was the first time a new sheriff patrol vehicle video recording system was utilized in the county.
Over the last year, the Montezuma County Sheriff’s Office phased out an old system that had ceased to work in favor of a Watchguard in-car digital video recording system.
Initially, it was believed the Sullivan shooting was not recorded because the patrol vehicles involved did not have their cameras manually activated. However, one of the vehicles was equipped with the new Watchguard system, which is constantly recording onto an internal hard drive.
Sheriff Dennis Spruell said the video of the incident was retrieved by pulling the hard drive, and following an investigation by the Colorado Bureau of Investigation and 22nd Judicial District Attorney’s Office, the shooting was ruled justified and officers were cleared of any possible charges.
In contrast, during a December 2010 high-speed pursuit of 41-year-old Edwin Scott Fulbright it was determined the county patrol vehicle cameras were broken and did not record the pursuit. A state patrol vehicle was able to record a portion of the chase.
Fulbright was sentenced in November to 30 years in prison after pleading guilty to five felonies.
Spruell said all sheriff patrol vehicle cameras are now operational.

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