Judge suppresses evidence in controversial Avon marijuana bust

diego alvarez marijuana plants.jpg
An Eagle County Sheriff's Office photo of marijuana plants found at Diego Alvarez's apartment last August.
Last August, Diego Alvarez was arrested in Avon on charges of felony cultivation of marijuana and felony possession of more than eight ounces of marijuana in a bust that made news throughout the state.

Now, however, the case has come to a screeching halt. In a pre-trial hearing in Eagle County Court that didn't end until after 8 p.m. on Wednesday night, Judge R. Thomas Moorhead suppressed all the evidence collected against Alvarez. That's appropriate in the view of Lauren Davis, Alvarez's attorney, who calls the police's actions "a real travesty of justice."

Davis deals frequently with marijuana-related issues. For instance, she represents Plants 4 Life, a dispensary that had been shut down by Castle Rock authorities late last year even though the town had earlier issued it a business license; earlier this week, that decision was reversed.

Alvarez's experiences were less bureaucratic. Last August, Davis says, "The police received an anonymous tip that somebody in one of the fourteen buildings in the Buffalo Ridge apartment complex was growing marijuana. That was the extent of the tip. No discussion of is it a male, is it a female, is anyone armed, is the person known to be dangerous to police. And this is a complex you wouldn't want to come home drunk to, because all fourteen buildings look exactly the same.

"But somehow, the police knock on the correct door and allegedly have a conversation with a roommate at the front door. Both Diego and the other tenant had been sleeping, so the knock woke them up. And while this is going on, Diego comes out in boxer shorts, sees the police and turns to go into his bedroom to get some clothes. And the police chase him into the bedroom, cuff him, and then drag him physically out of the bedroom. And they cuffed the roommate as well."

According to Davis, "the police asked Diego for consent to search and he said 'no.' So they started threatening him, saying, 'We can do this the easy way or the hard way? Do you want to go to work today? Are you a citizen?'

Turns out Alvarez has dual citizenship; his mother is an American. But she says Alvarez still felt threatened by this behavior, which was followed by "a full-blown search of his apartment under the guise of a protective sweep," during which police located six marijuana plants and two clones in his bedroom. Only afterward did police obtain a search warrant, Davis allows -- "and they gave him his Miranda rights, because he wanted a lawyer, but then proceeded to question him anyway."

Was the marijuana being grown for medical reasons? Davis concedes that Alvarez didn't have a license at the time, although he does now -- but she stresses that he had a verbal recommendation from a doctor to use marijuana medicinally for a range of ailments. Since the arrest, Davis adds, he's received another prescription: "He's on medication for hypertension as a result of the police misconduct."

In any event, the question of whether Alvarez was operating under a doctor's advice wasn't a factor in Judge Moorhead's ruling. Instead, Davis says, "the judge couldn't find that the roommate actually consented to let the police into the apartment. The prosecution couldn't prove that because it didn't happen. The police essentially barged in and chased this guy down in his own apartment, searched his apartment without a warrant, and then, only afterward, they got a warrant to try to bootstrap and protect their illegal conduct."

Members of the prosecution team have until January 22 to decide whether to challenge Moorhead's decision in appellate court or dismiss the case. But even if the charges against Alvarez go away, Davis feels considerable damage has been done.

"If, at the end of the day, his rights are vindicated, you can't say 'no harm, no foul,'" she feels. "There definitely was a foul."

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