A Pitkin County judge improperly allowed evidence stemming from an unlawful arrest to be used at trial, and did not correctly instruct the jury about how to use a different set of evidence, the state’s Court of Appeals ruled on Thursday.

The three-judge panel of the Court of Appeals that reviewed Jeremiah Daniel Casper’s case ordered a new trial based on District Court Judge Christopher Seldin’s decisions about what evidence a jury would hear — including an incriminating statement Casper made after police arrested him without probable cause.

Casper, who has a long criminal history in Pitkin County of misdemeanor and lower-level felony charges, was sleeping in his Jeep on the morning of June 21, 2017. He was parked in the public Base Village parking garage in Snowmass Village when an employee found him around 7:30 a.m. and told Casper he could not sleep there. The employee directed Casper to leave, which he did.

The following morning, another worker at the garage found Casper there working on his vehicle, with scattered trash and leaking antifreeze around the Jeep. Again, the worker instructed Casper to depart, and he complied. The employee then called police.

Snowmass Village Police Chief Brian Olson and Officer Brian Vanderpool responded and began searching for Casper. Olson found Casper nearby and approached him, but Casper took off running. Olson then chased, tackled and arrested Casper for trespassing.

While paramedics were attending to Casper, a chef from the nearby Westin resort asked Olson to follow him to the conference center. There, Olson found a cache of food, alcohol and catering equipment in a stairwell — apparently the work of an intruder. The chef indicated the intruder had broken equipment, drank alcohol and left out food to spoil. Another employee told Olson he had seen a man matching Casper’s description in the hallway.

Among the items in the stairwell was a yellow and black tool bag, which Casper admitted was his at the jail.

Finally, officers discovered a pile of items in the men’s bathroom of the Base Village Conference Center, near the parking garage where Casper was allegedly trespassing. The items included wine, wine glasses, antifreeze and prescription pill bottles with Casper’s name.

Prosecutors charged Casper with trespassing in the garage, plus the burglary and theft at the Westin. 

Casper’s attorneys moved to suppress the admission Casper made in jail about the tool bag being his. They argued Olson lacked probable cause to arrest Casper for trespass because there was no indication Casper had defied an order not to remain in the garage, which is a key element of trespassing. Casper was never told he could not return to the public parking garage, the defense pointed out, only that he could not sleep there.

The defense also challenged the relevance of the items found in the Base Village bathroom. Olson had conceded the wine, to his knowledge, was actually from the Base Village Conference Center, not the Westin. Casper was not facing any charges related to Base Village, as the burglary and theft allegations were solely for the Westin.

Seldin sided against Casper on both issues. The judge admitted he originally thought the wine and wine glasses in the bathroom were from the Westin. But even if they were not, they were “res gestae” evidence of trespassing — the legal term to describe evidence about other, uncharged conduct. As for Casper’s arrest, Seldin determined Olson had probable cause in part because Casper ran from him after Olson approached. Consequently, a jury heard that Casper identified the tool bag recovered at the Westin as his own.

Jurors convicted Casper of theft and burglary, but acquitted him of trespassing.

Casper reiterated on appeal the belief his arrest was unlawful. Police had no evidence Casper committed trespassing simply by being in the public parking garage with no instructions to permanently stay away, he told the appellate panel. He also argued Seldin had not only mistakenly allowed jurors to hear evidence about the items in the Base Village bathroom, but had failed to tell the jury exactly how to apply that evidence to the Westin-related charges.

The prosecution pushed back on both claims. Because Casper had apparently taken and used items from the Base Village Conference Center, it was more likely that he did the same thing at the Westin, argued Assistant Attorney General Jennifer L. Carty.

She also claimed police had probable cause to arrest Casper — for littering in the garage — or, at least, Casper’s flight from Olson contributed to the probable cause needed for an arrest.

“Defendant’s immediate flight after Olson asked him to stop and talk was highly suggestive of defendant’s wrongdoing,” Carty wrote.

The Court of Appeals panel agreed with Casper that police lacked information at the time of Casper’s arrest that he had defied an order to leave the garage. Telling Casper he could not sleep in the public parking garage was “meaningfully different” from telling him he could not be there at all, wrote Judge David J. Richman in the Sept. 1 opinion.

“While we agree that flight can be suggestive of wrongdoing, it cannot alone support a reasonable suspicion of criminal activity, much less supply probable cause,” he added.

As for the items in the Base Village bathroom, the panel noted the Colorado Supreme Court abolished the use of “res gestae” evidence earlier this year. Now, trial judges need to determine whether such evidence is logically relevant to a criminal charge. Further, the evidence may not be used to suggest a defendant committed a crime simply because he committed other, similar misconduct. Judges may also need to instruct jurors about how they are supposed to apply the evidence in their decision.

Because Seldin did not go through those steps for the bathroom evidence and was mistaken about whether Casper’s arrest was lawful, the Court of Appeals reversed the convictions and ordered a new trial.

The case is People v. Casper.