The Colorado Supreme Court has upheld a motion to suppress evidence that led to the arrest of two men charged with cultivating a marijuana farm in a remote section of Dolores County.

The state’s high court upheld District Court Judge Sharon Hansen’s decision to suppress the evidence, brought forth by then-District Attorney Mike Green, against defendants Kam King and Timothy Gulick.

In September 1999, the two were arrested and later charged with allegedly cultivating 200 marijuana plants in Roche Gulch, a remote box canyon located south of Rico. They were also charged with intent to distribute marijuana, possession of drug paraphernalia and controlled-substance/ special offender.

Gulick and King have pleaded not guilty, and filed successful motions to suppress evidence against them discovered during, and before, their arrest. The state’s high court ruled 5-2 on Jan. 16 that there was not probable cause for the initial arrest of the two suspects.

"I do not agree with the supreme court’s ruling," said Dolores County Sheriff Jerry Martin Monday. "The evidence suppression is unfortunate, but I think that we still have a good case."

In the written opinion, the state supreme court agreed with the defense that surveillance evidence at the pot farm — consisting of a videotape of a shadowy figure with long hair and an unidentifiable man with a full backpack — were insufficient probable cause for arresting the two men that night, and could not be used as evidence in the trial.

Tipped off by hunters who stumbled upon the garden in September 1999, members of the 22nd District Drug Task Force Brooks Bennett and Matt Buffington, along with Dolores County undersheriff Shane Schmalz, investigated the site and set up surveillance cameras.

A luggage tag found in the garden bore Gulick’s name, and upon visiting his address in Montezuma County, police found and spoke with King, noting a blue Nissan truck registered in his name parked outside the residence.

Bennett testified that King was 6 feet tall and had dishwater-blond hair; Gulick’s record showed that he had long hair below the shoulders.

Upon reviewing the surveillance tape, police observed "nighttime footage of two men shining flashlights on the marijuana in the garden," according to the written opinion. Buffington testified that "the only distinguishing feature on the tape was that one of the men had long, light hair."

It could not be determined whether either of the figures were indeed King or Gulick, he said, as related in the supreme-court decision.

One evening a week after viewing the tape, Bennett, Buffington and Schmalz staked out the farm, according to the opinion. Bennett climbed to a perch above the pot farm and donned night-vision goggles, while Buffington waited in a car down the road. The officers agreed to arrest anyone seen removing marijuana.

After reaching his perch, Bennett radioed that a blue Nissan truck, identified earlier as King’s, was approaching. An hour later, two men were observed, one with a full backpack suspected to contain marijuana, and another with long hair. But Bennett testified that he could not identify the men as the defendants for sure, or if they were carrying weapons, according to the opinion.

After allegedly leaving the vicinity of the pot farm at 3 a.m., the two suspects were followed, pulled over and ordered, at gunpoint, to leave the truck and lie face down on the ground. They were then handcuffed, arrested and subjected to a property search.

"Officer safety took priority," Martin said of the arrest. "With narcotic operations there is always the danger to the officers that the assailants have weapons."

Martin said that the fact that it was night and that there was no radio contact in the valley increased the danger factor for police, justifying the felony arrest.

"However, given the supreme-court ruling, I suppose we would have to approach that in some other manner.

"At this point I don’t know what it would be, but I cannot jeopardize officer safety and do not think they acted out of line in this case," Martin said.

A search of the backpack did not reveal any marijuana. Instead, it contained milk cartons, droplets of water, and a water pump, according to the court opinion.

The supreme court’s decision, written by Justice Michael Bender, was critical of probable-cause evidence introduced by police that had been obtained after the arrest.

Buffington testified that it was after the arrest of King and Gulick that he "smelled the live marijuana on their clothing," leading to the backpack search.

However, wrote Bender, "Evidence procured after an arrest cannot be used in hindsight to justify the arrest. Agent Buffington testified that if the officers had not, after the arrest, observed the defendants’ wet pants, smelled marijuana on their clothes, and found the cultivation implements in the backpack, then the officers would not have any basis on which to continue to hold the defendants."

At the time an arrest is made, according to law, police must possess probable cause that a crime is being committed, specifically by the person being arrested.

Without clearly connecting, through surveillance or otherwise, Gulick or King as the alleged pot-growers, the probable cause for arrest was in violation of the defendants’ constitutional rights, the court concluded.

While probable cause existed that illegal marijuana cultivation had been committed, that was not enough to justify the arrest of King and Gulick, the court found.

"The critical question that this case poses is whether the police had probable cause to believe that the defendants were the people cultivating the marijuana," Bender wrote.

"While this evidence merits the suspicion that King and Gulick had visited the garden, these facts do not specifically tie either to the crime of cultivation of marijuana. The police did not see the defendants cultivating marijuana."

The opinion continues, ". . . evidence that a person visited a marijuana garden is not . . . evidence that such person cultivated marijuana there. . . . Like the hunters who first reported the existence of the garden . . . . , the men seen shining lights might have stumbled upon the garden while hunting or hiking in the canyon."

The state’s highest court was also not persuaded that the show of force by police during the arrest was justifiable or reasonable.

Sheriff Martin disagreed.

"I do not think they were out of line in the arrest because of the officer safety issue," Martin said. "Put the picture in your mind of officers pulling up to narcotic suspects on a dark road, a camper blocking view of the cab. You just don’t know if they will come out shooting."

Regarding probable cause, Martin believed then that his officers acted within the law.

"We knew who they were, and when they went into the plantation that night we had it on camera and saw them leave with what we thought was a backpack of marijuana, but we already had our probable cause to make the arrest," he said.

Police can conduct what is known as an investigatory stop to question potential suspects in dangerous situations. Force can be used by police against a person to control a situation that they deem threatens their safety (i.e., a person behaving violently, or concealing a weapon).

Buffington testified that in training, he learned that marijuana-growers often have weapons. However he told the court that no facts existed to suggest the defendants were armed and dangerous.

In his dissenting opinion, Justice Nathan Coats argued that probable cause did exist to arrest the men because "circumstances known to the arresting officer are sufficient to warrant the belief by a reasonable and prudent person, in light of that person’s training and experience, that an offense has been committed and the defendant committed it."