Two snowboarders have lost a critical legal battle in the criminal charges they face related to an avalanche that buried a service road above Interstate 70 in March.
A Summit County Court judge delivered a setback to their defense Tuesday when he dismissed a motion to suppress a GoPro video of the avalanche that Evan Hannibal and Tyler DeWitt captured and gave to the Colorado Avalanche Information Center.
The video anchors the Summit County District Attorney’s case against Hannibal and DeWitt, who are charged with reckless endangerment and face a $168,000 fine. The case marks the first-ever criminal charges filed against skiers involved in an avalanche in Colorado.
The district attorney argues that Hannibal and DeWitt endangered drivers when they skied above the west portal of the Eisenhower-Johnson Memorial Tunnels on March 25 and they should pay $168,000 to replace an avalanche mitigation system destroyed in the slide the CAIC said they triggered.
The snowboarders on Tuesday argued prosecutors violated their protection from unlawful search and seizure when they issued criminal charges based on the helmet-cam video. The men gave the video to avalanche center investigators, hoping it could be used to craft a report so others might avoid a similar slide.
The snowboarders argued prosecutors violated their protection from unlawful search and seizure when they issued criminal charges based on the helmet-cam video.
“This is a state agency, a constitutional actor, not informing citizens that what they are voluntarily disclosing in good faith to that state agency could, and in this case was, turned over to law enforcement for purposes of prosecution,” Jason Flores-Williams, the attorney for DeWitt and Hannibal, said during the motions hearing. “This is extraordinarily problematic. There was a duty to inform Mr. Hannibal that what he was providing to the CAIC could be turned over to law enforcement.”
CAIC Director Ethan Greene and avalanche forecaster Jason Konigsberg testified that both Hannibal and DeWitt voluntarily provided information and video about the avalanche that buried a service road above the tunnels in more than 20 feet of debris. The CAIC report, published April 6, said the snowboarders triggered the avalanche and the two “assumed that the avalanche mitigation to protect the tunnel infrastructure decreased the avalanche hazard on the slope.”
Greene said it is common for law enforcement to request avalanche reports, and CAIC shares those reports. The state agency offers all of its reports for public review.
“Our role is to facilitate people understanding avalanches, and we do that by sharing information,” Greene said. “If the public requests information from us, we provide it.”
Greene’s team did not include the video captured by Hannibal in its report on the avalanche, even though the agency often publishes videos provided by people involved in avalanches.
“It was my judgment that the content of the video did not add to the educational messages we were trying to get across in the report,” Greene said.
Hannibal gave Konigsberg his video on a thumb drive. Konigsberg agreed with Flores-William in saying the sharing of the video was “voluntary and collegial.”
Flores-William asked Konigsberg if he ever thought the video would be handed over to law enforcement.
“Can I think about that for a second?” Konigsberg asked. “Honestly, it’s not something I thought about. I kind of had a one-track mind to collect information for avalanche education and safety, like I always do.”
Summit County District Attorney Heidi McCollum argued that Hannibal and DeWitt, as experienced backcountry travelers familiar with CAIC reports and observations, should have known that CAIC publishes information for public education.
“I understand there is a concern about the public policy side of this, but we have to focus on the law,” McCollum said. “And none of the law supports the ... argument that this video or the photos that were obtained should be suppressed.”
Summit County Court Judge Ed Casias found there was no violation of the men’s constitutional protections from unlawful search and seizure because there was no search and nothing was seized.
“It wasn’t a search of any kind. Mr. Hannibal was asked if he would provide it and he did,” Casias said
Casias said he wouldn’t expect Konigsberg to tell Hannibal the video could be used by law enforcement “because, frankly, he didn’t know that was going to happen.”
“That was not the reason he was collecting information,” Casias said.
Casias also denied the argument that the collection of the video violated the men’s Miranda rights, which only applies to people in custody when they are advised that what they say can be used against them in court.
“There is information here that was provided. It was provided voluntarily. It was provided to CAIC, not law enforcement and the purpose of that was for information related to the avalanche,” Casias said.
The courts should work to ensure police don’t use third parties and other state agencies to gather evidence that could be used in filing criminal charges and circumvent constitutional protections against unlawful search and seizure, Casias said. Still, he could not connect a skier providing information to an avalanche center – even when that information became evidence in criminal charges – with a constitutional violation.
“If there are things that you, as a backcountry traveler, do that cause new concern that law enforcement may be involved and someone reaches out and asks for information, you don’t have to give it,” Casias said. “I can’t make you disclose and I can’t make you withhold. But if your common goal is to make it safer for other people ... it’s your decision.”