Jury acquits man of felony in drug stop

Jury acquits man of felony in drug stop

December 13, 2001

By Jim Mimiaga
Journal Staff Writer

An Olathe orchard worker arrested for felony drug possession at a controversial narcotics checkpoint near Rico was swiftly acquitted by a Dolores County jury Tuesday.

After deliberating for 45 minutes, the jury found Steven Corbin Roth, 59, not guilty of possession of psilocybin mushrooms, a felony offense.

District Attorney Joe Olt had implored the jury to convict Roth based on the fact that illegal mushrooms were allegedly discovered in a cooler during a search of a car Roth was driving.

But defense attorney Richard Unruh successfully argued that neither Olt nor police definitively proved that the 15 grams of the illicit mushrooms were in fact Roth’s.

Roth was found guilty of possessing drug paraphernalia by the jury and received a $130 fine.

"The prosecution failed to bring good enough evidence, so there was a reasonable question of whether (Roth) knew about the drugs," said juror David Breternitz after the trial.

Documents and motions filed in the case raise further questions about the legality, effectiveness and fairness of such drug stops, which are being challenged as unconstitutional.

However, police justify such stops as necessary in order to curb drug-trafficking on area highways. They point out that only vehicles breaking the law are pulled over and then questioned about drug-law violations.

Roth’s testimony, vacation snapshots and contradictory statements made by police led to questions about the felony drug charge.

Roth and a companion, Jeanne Gumeson, were returning from a camping trip at Navajo National Monument June 15, 2000, when they came upon a signs on Highway 145 announcing a "Drug Checkpoint" and "Narcotics Canine" ahead.

The signs prompted Gumeson to allegedly toss a suspicious item out of the Toyota Camry she owned. Meanwhile, Hugh Richards, an officer with the Southwest Colorado Drug Task Force, was hiding on a nearby hillside and reportedly spotted the littering from a distance of 100 yards.

Richards said he radioed ahead to more task-force agents, who waved Roth into a checkpoint at Clayton Camp-ground. Upon a search of the area, Richards found a pipe with what smelled like marijuana residue in it.

Based on the pipe and eyewitness, Dennis Spruell, an officer with the Drug Task Force who developed the operation, asked for permission to search the vehicle, but the occupants refused. Spruell testified that because the pipe constituted probable cause, he decided to conduct a search anyway and ordered Roth, Gumeson and a pet dog out of the car.

"The search was 10-12 minutes," he said. "Normally we would have liked to have conducted a more thorough search to better look through all the camping gear."

Two marijuana pipes were found as a result of the search, he testified. When a red cooler packed with food and ice was inspected, Spruell found two packages of suspicious material that later tested as psylocibin mushroom, a Schedule I narcotic.

But Unruh questioned testimony by Richards and Spruell and argued Roth did not "knowingly possess" the drug because it was not in his cooler, but Gumeson’s.

In court documents, Unruh further stated that the pipe used to justify the search may not have been Roth’s after all. Police reports show that drug paraphernalia was found along the roadside after the checkpoint that officers had not seen being thrown away.

Spruell testified that Roth knew about the drug because "since they were on a trip together, the cooler belonged to both occupants."

Olt argued that made it "in Roth’s dominion" and therefore in his possession.

"When you go camping, does it matter which cooler each persons uses?" Olt asked the jury. "The cooler was within his reach."

But in a situation where a man faces felony charges and possible jail time, ownership really matters, Unruh argued.

Roth testified that he did not know about the mushrooms and does not use them, and that the cooler with the mushrooms was not his. His cooler did not contain illegal drugs.

"The detective tried to stretch that when he testified earlier that he was not sure if the drugs were found in one or both coolers," Unruh said during closing arguments. "Roth did not possess them."

During an expedition to Keet Seel Ruin on the Navajo Reservation, Roth explained that he left the red cooler unattended for two days at the trailhead parking lot. Dated park passes supported the claim.

"There was, to be honest, quite a lot of partying going on (at the trailhead)," he said, adding later that "anyone could have had access to it while I was gone for two days and a night."

A picture also showed the red cooler next to Gumeson. She was also charged with felony possession, but the charges were dropped.

The defense had filed a motion to suppress the evidence, claiming it was gained from an illegal search. However, Judge Sharon Hansen, who oversaw the case, denied the motion, writing that the checkpoint "ruse," although deceptive, passed legal muster.

Task-force agents assert the effort was not a narcotics checkpoint, despite the signs saying it was.

Spruell told the court that the tactic is intended to "make drug users afraid" and prompt illegal activity such as littering or traffic violations. A hastily performed U-turn without signaling, tinted windows or furtive behavior should be watched for, the plan said.

Critics claim the operation illegally profiled concertgoers headed to the Telluride Bluegrass Festival. Police say that during that four-day festival the roads are crowded, which justifies increased law-enforcement presence.

A class-action suit initiated by concert organizer Planet Bluegrass against the Drug Task Force is pending.

Ironically, the so-called "ruse" checkpoint, is an actual drug checkpoint, argued Unruh in the motion to suppress evidence. He said it is funded by a drug interdiction grant and put on by a drug task force, but ambiguously named to pass legal review.

The operation is dubbed "Roadblock, No Roadblock" or "Catch-22."

Unruh cited a U.S. Supreme Court decision in 2000 that found narcotics checkpoints violate the Fourth Amendment.

That high court upheld DUI checkpoints because they are directly related to driving safety, but said checkpoints for drug possession target an "ordinary crime" and are therefore unconstitutional.

However, Hansen ruled that this "narcotics checkpoint" was not real.