Rejecting calls to have the case against drug suspect Matthew Kurr tossed out, Montrose County Judge Ben Morris on Wednesday found sufficient cause to send it on to District Court.
Kurr, now free on bond, was arrested in January after 7th Judicial District Drug Task Force agents alleged he used rental vehicles to traffic drugs. The investigation began after rental car companies reported finding drugs in vehicles Kurr had allegedly rented.
He was charged with possessing methamphetamine with the intent to distribute it; drug possession; as a special offender for allegedly having a firearm while in possession of drugs, and with possession of drug paraphernalia.
Only the intent to distribute and special offender charges were eligible for Wednesday’s preliminary hearing, which considered, in the light most favorable to the prosecution, whether there was probable cause to support the charges.
Task force Agent Chance Davidson testified he had information Kurr was driving a Tahoe to Montrose from Cortez Jan. 12, so he asked Colorado State Patrol Trooper to Adam Jennings, a drug interdiction specialist, to locate and stop the vehicle.
Jennings pulled the vehicle over after watching it weave across the center lane a few times, the trooper later testified. Davidson had him seize the vehicle while the task force obtained a search warrant for it.
According to testimony Wednesday, authorities found a .40 caliber gun that Kurr had admitted was in the vehicle. Davidson said there was a round in the chamber, as well as .40 caliber ammo; a wallet with Kurr’s ID; two cell phones; a black bag containing a digital scale and a plastic bag that contained two more bags. Each of those bags contained about 27.5 grams, each, of methamphetamine, the agent testified.
The amounts were consistent with distribution, not personal use, he said.
Davidson said he associated multiple phones with drug trafficking activity; under questioning by public defender Kori Zapletal later, he said there are also legitimate reasons someone might have more than one phone.
Kurr was not detained at the time of the stop, because the vehicle was not searched until Jan. 15. Instead, he was given a courtesy ride from the scene. He was arrested on a warrant issued Jan. 25.
Jennings said that although nothing illegal was readily visible, when he reached into the Tahoe to roll up its window, he saw some of the alleged contraband.
The gun was not fingerprinted or swabbed for DNA and Jennings did not see Kurr actually holding it, per testimony. Nothing in the large bag indicated it belonged to Kurr.
Deputy District Attorney Jason Wilson repeatedly objected during Zapletal’s cross exam of Davidson and her questioning of Jennings, who had been called by the defense.
Wilson said the law only required a firearm to be in the vehicle, within reach of Kurr — not actually in his hands — for him to be charged as a special offender-weapons.
He also objected to Zapletal’s line of questioning concerning the bag, prompting Zapletal to counter that Morris couldn’t make a determination on evidence before he heard it.
Zapletal in closing argued there was no proof the meth found in the vehicle belonged to Kurr; there was no proof he alone had access to the vehicle that day and there was no evidence actual drug sales had taken place. She also reiterated her position that prosecutors cannot prove Kurr actually handled the firearm.
The People also could not prove the “knowingly” element required for the possession with intent to distribute charge, Zapletal said.
Wilson said Kurr was the sole occupant of a vehicle in which 2 ounces of meth were found.
“What we have is … Mr. Kurr did in fact possess methamphetamine with the intent to distribute,” Wilson said.
“I think it’s rational to infer the defendant did knowingly possess methamphetamine with the intent to distribute,” Morris said, in ruling the case should proceed to District Court.
“ … We had a significant amount of methamphetamine.”
Morris said the evidence presented showed the defendant knew there was a gun readily at hand, within his control in the vehicle, so he also found probable cause for that charge.
Kurr was set for an Oct. 21 hearing in District Court.
Prior to the prelim, Morris considered a renewed defense motion to prohibit the GPS data task force agents gathered from being admitted into evidence. Zapletal argued not all of the evidence had been preserved and turned over to the defense as required. The data was gathered by a third party, private company, and its print screen function did not work properly, Davidson testified. Although he watched the tracking data come through in real time, when he tried later to retrieve the information, he could not.
Wilson argued that Davidson’s reporting of the data was a record of it and that the defense has the ability to question Davidson at trial. Zapletal, however, asked that the GPS data be excluded from not only the prelim, but all subsequent hearings, as a sanction.
Morris considered prior rulings on the issue as well as Davidson’s Wednesday testimony. He found Davidson made reasonable efforts with respect to the GPS data, but although it wasn’t readily apparent the data were exculpatory, the information would be helpful to the defense.
He excluded the GPS data from the preliminary hearing, but said he did not have jurisdictional authority to exclude it from District Court hearings going forward. Instead, the matter will have to be argued there.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.