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DA won’t appeal ruling

 WALSENBURG — Two defendants in a November 2014 drug case are free with charges dismissed after the court found the original search warrant was flawed. Charges against Allen Wayne Martinez, who has been free on bond since November 15, 2014, and Barbara Gutierrez-Gonzalez, who had been in custody since November 5, 2014 on a $40,000 cash bond, were dismissed recently on a motion to suppress the search warrant in Martinez’s case by his attorney Janet Kinniry. Gutierrez was released from custody at the Huerfano County Jail on Friday, July 24, according to Sheriff Bruce Newman The long pretrial incarceration of Gutierrez began November 5 when Huerfano County Sheriff’s deputies served a search warrant on her home at 109 S. Tyler in Walsenburg. In November Sheriff Newman had told the World Journal, “Heroin is getting to be the new thing around here, we’ve been looking for a way to break this open and our initial investigation into a reckless endangerment case led us to these arrests.” The reckless endangerment complaint centered around Carol Sanchez, identified in court papers as a civilian informant, who

allegedly told HCSO Detective Sgt. Craig Lessar she had been partying with Gutierrez on October 23, 2014, and had been injected with a drug in her neck that caused her to eventually black out. While in her conversation with the deputy, she said she believed Gutierrez may have driven her to the hospital, but later investigation showed Gutierrez had called 911 and an ambulance and police had been dispatched to the Tyler Street home. Kinniry challenged the veracity of the statements made by Sanchez which were part of the basis used to pursue the search warrant. Kinniry also argued successfully her client, Martinez, had rented a room in the residence and his private domain, if searched, should have been covered by a separate warrant. Text messages between Gutierrez and Sanchez while the latter was recovering in an ICU unit, also cast doubt whether or not the drugs used on October 23 were provided by the defendant, or were crushed pills owned by Sanchez. “In his motion to suppress,” Kinniry wrote, “defendant contends that the affidavit in support of the warrant is a bare bonds affidavit. He argues that the affidavit relies exclusively on the uncorroborated statements of one informant, Carol Sanchez. In addition, the defendant asked for the court to not consider the informant to be a citizen-informant, because she was using drugs and was deflecting attention from her own possible criminal culpability for drug use.” The motion also said Sanchez’s allegation Gutierrez was a heroin dealer is unsupported, and the information was stale, as her contact with the deputy was 12 days prior to the application and subsequent execution of the search warrant. According to information provided by the sheriff’s office in November 2014, items seized during execution of the search warrant included approximately $10,000 worth of heroin, methamphetamine and suspected cocaine. In addition, drug paraphernalia, including scales and at least one ‘loaded’ syringe, $2,600 in cash, and a .380 semi automatic handgun were taken into evidence. In his ruling in the Martinez motion to suppress, Third Judicial District Judge Claude Appel wrote, “The Court finds that the affidavit at issue at best provides conflicting information and does not establish a ‘substantial basis’ for concluding probable cause existed to a magistrate to believe that an opiate was injected into Ms. Sanchez by Ms. Gutierrez-Gonzalez at the residence searched, since the same affidavit provides conflicting statements by Ms. Gutierrez-Gonzalez to Ms. Sanchez of the latter’s use of her own morphine pills which allegedly caused her seizure.” The judge also said,”No facts in support of the informant’s claim that heroin sales are conducted at the residence are contained in the affidavit such as those relating to dates or times this selling of drugs by Ms. Gutierrez-Gonzalez at the residence allegedly occurred, and Ms. Sanchez fails to relate to the affiant in the affidavit a single instance of observed drug selling by Ms. Gutierrez-Gonzalez either at the residence or anywhere else for that matter.” Third Judicial District Deputy DA Kevin Stoner argued Sanchez met the criteria of a citizen-informant, and also argued, “the omitted facts are not material and do not render the affidavit ‘substantially misleading’.” In his written ruling, Judge Appel said, “The Court concludes that the affidavit in this case was bare bones and therefore no reasonable officer could rely upon it in executing the search. As a consequence, the good faith exception to the exclusionary rules does not apply to shield the evidence obtained in the search.” The motion to suppress evidence in the Martinez case was dated July 10, 2015. Another defendant in the case, Thomas Harrington, took a plea bargain in January 2015 to possession of a class 3, 4 or 5 controlled substance, a class one drug misdemeanor and received a deferred sentence, according to District Attorney Frank Ruybalid.