Judge: No rights violations against snowboarders who caused avalanche

The Eisenhower/Johnson Memorial Tunnels are pictured on May 20. A pair of snowboarders are fighting reckless endangerment charges after triggering an avalanche above the Loop Road near the tunnels on March 25.
Photo by Liz Copan / Summit Daily archives

Prosecutors will be allowed to use evidence provided to law enforcement by the Colorado Avalanche Information Center in the upcoming trial of Evan Hannibal and Tyler DeWitt, two snowboarders charged with reckless endangerment after triggering an avalanche that buried a roadway in snow nearly a year ago.

Jason Flores-Williams, the defense attorney for Hannibal and DeWitt, joined members of the prosecution and numerous onlookers during a virtual motions hearing on the case Tuesday afternoon, arguing that evidence provided to law enforcement by the Avalanche Information Center represented a violation of his clients’ Fourth Amendment rights. Summit County Judge Edward Casias ruled that there was no constitutional violation as a result of the information sharing and dismissed the motion to suppress the evidence at trial.

On March 25, DeWitt of Silverthorne and Hannibal of Vail were snowboarding above the Eisenhower/Johnson Memorial Tunnels when they triggered an avalanche that ran onto the Loop Road above the tunnels. Nobody was injured in the slide, though it did damage a remote avalanche-control unit and cover more than 400 feet of the roadway in debris up to 20 feet deep.

DeWitt and Hannibal cooperated with law enforcement on scene after the avalanche and were allowed to leave. In April, they each were issued citations for misdemeanor reckless endangerment. In addition to the charges, prosecutors also are seeking more than $165,000 in restitution for the resulting damage and cleanup.

During the hearing Tuesday, Flores-Williams argued that law enforcement circumvented the snowboarders’ Fourth Amendment rights — protection from “unreasonable searches and seizures” — by obtaining information and evidence on the incident from the Avalanche Information Center, which his clients provided to the center without knowing it could be turned over to law enforcement to be used in a criminal investigation.

“What we are really arguing against here is law enforcement’s ability, whether intentional or not, to run an end around fundamental constitutional provisions,” Flores-Williams said.

Witnesses with the Avalanche Information Center tuned into the hearing to testify on how they collected evidence in the case and to provide information on the organization’s operations at large.

Jason Konigsberg, an avalanche forecaster with the center, said he spoke with DeWitt and Hannibal in the days following the avalanche to collect information on snowpack, slope angle, elevation, how the slide occurred and other information that might be relevant to the center’s eventual report on the incident. He noted that DeWitt voluntarily supplied him with photographs and that Hannibal voluntarily supplied him with a video of the incident. Konigsberg said he wasn’t aware of any potential criminal investigation at the time and never informed either man that the information could be turned over to law enforcement.

The information Konigsberg collected, including the photos and videos, was later shared with the Summit County Sheriff’s Office by the avalanche center’s Executive Director Ethan Greene.

During his testimony, Greene said the center was focused on improving information and education about avalanches to improve the safety of backcountry users, and the organization frequently provides information on avalanches to other state agencies for that purpose. He said the center also frequently works with sheriff’s offices on search and rescue operations.

Much of the information the center collects on any avalanche typically ends up in publicly accessible reports on the organization’s website, and the center is subject to the Colorado Open Records Act, meaning most information gathered is available to the public upon request.

“Our role is to facilitate people understanding avalanches, so we do that by sharing information,” Greene said. “In general, if the public requests information, we provide it.”

Summit County Sheriff’s Office Deputy Brian Metzger, a special operations technician who serves as a liaison between the office and Summit County Rescue Group, testified that he received the Avalanche Information Center’s written report, photos and video upon request. He stated that he didn’t direct the center to complete the report or obtain the photos and video, nor did he know of the video’s existence before receiving the report.

Following the testimony, Flores-Williams continued to push a narrative of impropriety.

“In essence, what we have are citizens being deprived of their ability to object to disclosing their information to a constitutional actor, i.e., CAIC,” Flores-Williams said. “There was a duty to inform Mr. Hannibal that what he was providing Mr. Konigsberg, and ultimately CAIC, could go to law enforcement, and that he may want to consider his rights. … When citizens in good faith cooperate with that state agency, they need to know that the information they’re providing to that state agency could (be) — and in this case was — turned over to law enforcement and could be used against them in a court of law.”

Deputy District Attorney Stephanie Cava countered that the Avalanche Information Center was not acting to aid law enforcement when they were collecting information on the case. She also noted that because the center frequently published public reports, and was subject to open records requests, handing over information to law enforcement was largely inconsequential.

“I would say certainly an expert (backcountry snowboarder) would know CAIC often publishes all the information they gather when they are doing these investigations,” Cava said. “Information you’re providing to CAIC goes on their website, goes to YouTube. That information is so that other people can learn, and it’s subject to open records requests. If Deputy Metzger hadn’t reached out and requested it, he probably could have filed a (Colorado Open Records Act) request.

“I understand there is a concern about the public policy side of this, but we have to focus on the law and the case law that’s actually been developed in this area. … None of the law supports Mr. Flores-Williams’ argument that this video or photos that were obtained should be suppressed.”

Ultimately, Casias ruled that because there was no formal search of DeWitt or Hannibal’s person or property and because there was no seizure — both gave information and media voluntarily — there was no violation of their Fourth Amendment rights. Casias also said neither Konigsberg nor Greene were acting as law enforcement agents during their investigation and that the defendants didn’t have to be informed of their rights because they were never placed in custody or interrogated as part of a criminal investigation prior to being charged.

“The information that was provided was provided,” Casias said. “There may be some backcountry folks that think that’s unfair, and I’m not going to say it is or it isn’t. … I would hope that the sharing of information to make it safer for everyone, including the parties involved if they go out again, wouldn’t be something that is jeopardized because of this court’s ruling.

“The backcountry is a place that is great for the escape from the masses. It does come with risks, and the more information people have on managing the risks the better off everyone is with it. But if it’s going to cause people to not provide videos or photographs because there might be a criminal prosecution, I can’t stop that. That’s not what this court’s function is. I would hope that’s not the case. But if the events trigger something that causes a person to feel concerned they might get a ticket or be arrested, they certainly have the right not to provide that information to CAIC or anybody else.”

A trial for the case is scheduled March 25, though Casias noted the date is subject to change given ongoing scheduling difficulties as a result of COVID-19.

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