CENTENNIAL - Attorneys in the Aurora theater shooting case battled it out in court Wednesday as the defense motioned to suppress the search of James Holmes' apartment and the items that were seized.
Witnesses from law enforcement testified in a pretrial hearing Wednesday on whether evidence seized from the alleged shooter's apartment can be introduced at his 2014 trial.
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The defense team argued that items not be presented to a jury because police initially "entered" the Paris Street apartment without a warrant. They say all kinds of things were collected that should have never been collected.??Prosecutors argue the items were seized properly and lawfully and should be introduced to a jury.
A search warrant was signed by Judge William Sylvester on Saturday, July 21, 2012 at 9:15 a.m. Prosecutors say the immediate danger of the situation required law enforcement to get a look inside the apartment before the search warrant was obtained.
Law enforcement officers who captured Holmes at the theater, say the suspect told them his apartment had bombs. They were immediately concerned about explosives going off in Holmes' apartment and endangering the public, especially those who lived in close proximity to his apartment. ??Adams County bomb squad commander Roger Kelley said he arrived at the apartment on Paris Street at around 3 a.m. on July 20 and learned that a search warrant was "in process."
"We decided immediate entry was necessary due to the gravity of the event," Kelley said. "Not knowing what's in there could cause harm to the general public and first responders."
Aurora Police Department Detective Tom Wilson testified that before he arrived at Holmes' apartment at 6 a.m. on July 20, an ATF agent told him that Holmes had purchased body armor and firearms. He said he was also told Holmes bought chemicals that could be used to make explosives from The Science Company on Sherman Street in Denver.
As officials assessed the unprecedented nature of the volatile situation, they decided to bring in a robot to help.
According to Kelley, an Adams County robot was used to reach the door to Holmes' apartment early on the morning of July 20. The robot had a firearm attached and blasted out the lock on the door around 4 a.m., before the search warrant was obtained.
Kelley said the robot had four cameras connected to a monitor in a bomb truck. They were able to see "three clusters of explosives on the floor."
Paul Capolungo with the Denver Police bomb squad said he observed a trip wire. He said he saw 15 to 20 black plastic mortar shells on the floor. From those shells, he said, a green fuse was protruding, with a yellow electrical line attached. He said the yellow line went to the back side of a wall and was attached to a plastic jug.
"If you hit the trip wire, it was designed to fall into [a] frying pan," Capolungo said. "It could [cause] a hypergolic reaction and start [a] fire."??"I had never seen anything like this before," Capolungo said. "It appeared highly dangerous. If they went off it would have been devastating."
Instead of risking the robot going in and setting off the trip wire, they decided they needed a better view of what else, or who else was in the apartment.
Capolungo was lifted to the third floor windows in a bucket truck. He broke out the windows, ripped out the closed blinds to try to get a glimpse of what was inside.
Capolungo said a strong gasoline odor emanated from the apartment once the windows had been broken.
Despite the fact that no one physically entered the apartment before the search warrant was issued, the defense takes issue with the robot blasting the door open and someone breaking the windows before the warrant was signed. To understand the reasoning, you must be familiar with an old precept in federal law: "the fruit of the poison tree."
Essentially, it is the belief that if the source of the evidence is tainted, anything else gleaned from that, is tainted as well.
So, if the front door and windows were busted open before the warrant was obtained, the defense contends that any evidence gathered after that is tainted, and should not be presented to a jury.
After the search warrant was received at around 10 a.m. on July 20, various law enforcement agencies, including the FBI and local police departments, worked together to coordinate the search of the apartment.
Aurora Police Department Detective Tom Wilson said a page from a notebook discovered in a backpack in the apartment was seized. It had a drawing of a "maze game involving a serial killer" and a downtown Denver address of a "place called Lodo's." It was unclear whether Lodo's referred to Lower Downtown or the Denver bar of the same name.
Arapahoe County District Court Judge Carlos Samour did allow the page to be admitted into evidence for Wednesday's hearing. However, the defense argued that to properly be evaluated the entire notebook should be admitted, rather than just the one page.
Samour said that if the defense wants to introduce the entire notebook at some point, he would allow it.
The backpack that contained the notebook also contained documents to withdraw from the University of Colorado Anschutz Medical Campus. Wilson said it was not signed.
Wilson also testified that prescriptions for Sertraline and Clonazepam were found in Holmes' bathroom. Sertraline is the generic form of Zoloft. Clonozepam is the generic form of Klonipin.
Documents for a 2000 Hyundai Coupe were also found in the apartment. Wilson said they were seized because it's a car that matched the description of one found outside the Aurora Theater.
FBI Special Agent Leslie Kopper was a team leader in collecting evidence that day. She testified that the following items were among the evidence seized from Holmes' apartment on Paris Street:
• Plastic Batman mask
• Calendar with July 20, 2012 marked
• Cardboard box labeled 'Remington Rifle'
• Fandango movie receipt for "The Dark Knight Rises"
• Black contact lenses
• Target stand and targets
• Roll of aqua-colored tape
• Black powder found in a trash can
• Wire and thumbtack
• Frying pan
• Paint brushes
• CPU fan
• Shoes and gloves
• Air freshener
• Tactical mirror
• Apartment lease with Holmes' name on it
Kopper contended that individual items were seized for a variety of reasons. She said some could be processed for fingerprints or DNA. In some cases she explained that some items could be tested for trace evidence of chemicals used to make explosives.
There were other reasons she cited as well. For example, she said the roll of aqua-colored tape was seized because it looked like the tape that was used to prop open a theater exit door.
The air fresheners, she said, could have been used to mask the smell of gasoline.
Holmes has entered a plea of not guilty by reason of insanity to charges of murder and attempted murder in the Aurora movie theater massacre on July 20, 2012. Twelve people were killed and 70 were wounded.
If the judge does allow the long list of evidence to be presented to a jury, the prosecutors will likely use it to undermine the insanity plea.
Judge Samour has not ruled on whether or not the evidence will be allowed.
(KUSA-TV © 2013 Multimedia Holdings Corporation with The Associated Press)