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 defendants fourth Amendment rights.
Theyre going on an illegal fishing expedition, he said. Theyre searching our homes ... Its a snowballing effect we cant allow to happen.
Search warrants issued in the case were targeted at the defendants 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 Mondays 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 Mondays 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 mans 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 Sheriffs 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 defendants 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.
