"Google is an agency of the government," said Attorney Lawrence Delay March 20 as he explained to San Juan County District Court Judge Stewart Andrews why a search warrant was invalid. The satellites used for Google Earth images were launched by the government and therefore none of the evidence can be used to obtain the warrant, he said.
After the warrant, to follow up on a complaint of a suspected unpermitted single-family residence, was executed, Errol Speed was charged with three misdemeanors regarding his unpermitted house and one gross misdemeanor for lying to a public official. The images were part of the evidence cited by the county Prosecutor's office to obtain the warrant. Other information included Errol Speed's admission to the county code enforcement office that he had an unpermitted wood stove. (The charges are listed at the end of this article.)
Delay argued the warrant relied on images that show more than can be seen by the naked eye from a height of 1,000 feet - the altitude aircraft must stay above at the location. This violates state law, he said. The warrant was unconstitutional because the images violate Speed's right to privacy. He noted Speed bought the property for its privacy.
Silverman said the images of Speed's roof did not violate any expectation of privacy.
Speed built the structure without any permits. According to county Assessor Charles Zalmenak, Speed told him the building was an agriculture structure and it was assessed at the appropriate value for an accessory agriculture building not as a residence.
The search revealed evidence it is a residence - "a bed, desk, kitchen table, kitchen sink with plumbing and drain to the exterior, wood stove, gas lines, gas stove, refrigerator, couch, bird cage with bird, clothing and other miscellaneous household items consistent with residential dwelling use and human habitation."
In his court declaration filed before the hearing, Speed said the structure has skylights because it is not served by OPALCO and has no electrical lights; it has a stove, as any structure not in the tropics would have, has a wrap-around deck as an extended outdoor work space, and has a covered deck to keep the entrance dry and store materials out of the rain.
In response to Delay's arguement that the county should have conducted a civil trial, Silverman said the county did follow the county's education-based procedure for code enforcement. Voluntary compliance was sought and unsuccessful. Civil proceedings began but were stopped after Speed submitted false statements. Criminal charges were then filed.
Silverman also submitted as evidence court records from a previous matter regarding Speed and his partner Libby Cook. "In June, 1998, Libby applied for a building permit from San Juan County for the structure she and Errol were building on the leased land [Fred Ayers's property]. On the permit application, Libby labeled the structure an "Accessory Agricultural Bldg." Both Libby and Errol admit they did so to avoid the application of certain building codes. Errol contends that he and Libby were planning to comply with the building codes, if pressed by the county at a later time.
Silverman said, the subsequent purchaser of the property was harmed when they discovered the residence was unlawfully constructed.
Silverman told Judge Andrews more evidence than the images was cited to obtain the warrant. While Silverman argued the images were properly used, he also said additional information was cited when the county prosecutor's office obtained the warrant. Speed had told the county code enforcement office he had an unpermitted wood stove.
Judge Andrew agreed to give Delay more time to submit briefs. The timeline was extended due to Delay's schedule which includes other cases and a rare vacation. Andrew will issue his decision May 8, 2013.
Count I: Violation of the Unified Development Code: Unlawful use or maintenance of an unpermitted structure. Punishable up to 90 days in jail or a $1,000 fine or both. Plus restitution and court costs.
Count II: Violation of the Unified Development Code: Unlawful occupancy of a building or structure without an occupancy permit.
Count III: Violation of the Unified Development Code: Failure to have approved sewage disposal.
Count IV: Making false or misleading statements to a public servant. This is a gross misdemeanor punishable up to 364 days in jail or a $5,000 fine or both. Plus restitution, assessments and court costs.