Two avalanche defendants, snowboarders, are facing charges and a $168,000 fine for an avalanche that threatened I-70. A judge just dismissed their motion to dismiss video of the avalanche they gave to Colorado Avalanche Information Center.

Motion to Dismiss

A Summit County Court judge dismissed a motion to suppress a GoPro video of the avalanche. Evan Hannibal and Tyler DeWitt had given the video to the Colorado Avalanche Information Center (CAIC).

The video is evidence in the Summit County District Attorney’s case against Hannibal and DeWitt. They are charged with reckless endangerment and could face a $168,000 fine. These are the first criminal charges ever filed against skiers involved in an avalanche in Colorado.

The prosecution argues that the avalanche defendants endangered drivers near the west portal of the Eisenhower-Johnson Memorial Tunnels. They want $168,000 to replace an avalanche control system destroyed they destroyed. The CAIC said they triggered the avalanche.

The snowboarders argued that prosecutors conducted an unlawful search and seizure when they based the allegations on the helmet-cam video. The men gave the video to the CAIC voluntarily. They hoped it could be useful so others might avoid a similar slide.

CAIC is a State Agency

“This is a state agency, a constitutional actor, not informing citizens that what they are voluntarily disclosing in good faith to that 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 on Tuesday. “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 the avalanche defendants voluntarily provided information and video about the avalanche. The CAIC report said the snowboarders triggered the avalanche. And also that 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 information. The CAIC shares its reports. The state agency offers all 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.”

The CAIC did not include the video in its public report, although they often do publishes videos. “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.

Video Provided Voluntarily

Konigsberg agreed with Flores-William in saying the sharing of the video was “voluntary and collegial.”

Flores-William asked Konigsberg if he thought the video could 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.”

The prosecution argued that Hannibal and DeWitt, experienced with CAIC reports, should have known that CAIC publishes information. “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.”

Judge Ed Casias found there was not any violation of 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. “Frankly, he didn’t know that was going to happen. That was not the reason he was collecting information,” Casias said.

Miranda Rights don’t apply

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 voluntarily. It was provided to CAIC, not law enforcement,” Casias said.

The courts should ensure police don’t circumvent constitutional protections against unlawful search and seizure, Casias said. Still, he could not connect a skier providing information to an avalanche center 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.”