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Attorney in distracted driving case wants cellphone evidence tossed; prosecutor says 'no way'

HILLSBORO, N.D. - The defense team for a Hatton woman charged with negligent homicide filed a 14-page argument for a motion to throw out evidence taken from her cellphone following a deadly car crash near Hillsboro last year.

1542457+Abby Elaine Sletten.jpg
Abby Elaine Sletten

HILLSBORO, N.D. – The defense team for a Hatton woman charged with negligent homicide filed a 14-page argument for a motion to throw out evidence taken from her cellphone following a deadly car crash near Hillsboro last year.

The felony charge was leveled against Abby Elaine Sletten after she rear-ended the SUV in front of her on Interstate 29, killing the 89-year-old passenger of the SUV, Phyllis Gordon.

Cellphone records show Sletten, who was 20 when the accident occurred, was looking through Facebook photos at the time of the crash shortly before 2 p.m. May 27, according to court records.

At the same time, the SUV, driven by Jennifer Myers, was trying to make an illegal U-turn at a median crossing.

Bruce Quick, Sletten’s defense attorney, said state Highway Patrol troopers unlawfully seized her phone and therefore any evidence taken from her phone should not be allowed in court.

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“Law enforcement did not have a search warrant ... despite nearly 24 hours time to seek a warrant for the towed vehicle,” Quick wrote in his argument filed this week with state district court in Hillsboro.

Sletten’s vehicle, which was heavily damaged in the accident, had been towed to an impound lot near Mayville, where troopers later inspected and searched it.

Quick said troopers violated Sletten’s constitutional rights protecting her from unreasonable search and seizure by failing to obtain a search warrant before taking her phone from her towed car and placing it in evidence.

However, Traill County State’s Attorney Stuart Larson said the troopers were within their right to seize the phone due to an exception, called the “plain view exception.” The exception says law enforcement officers can seize something without a warrant if it is obviously incriminating and if it is visible from somewhere the officers are legally allowed to be.

Larson argued in a four-page document filed with the court, also this week, that Trooper Matthew Brown was legally inside Sletten’s car when he saw and seized the phone.

Larson wrote that Sletten’s mother, who was the owner of the vehicle, gave troopers permission to search the car when she contacted troopers to ask where Abby’s phone was.

The troopers had probable cause to believe the phone contained evidence of a crime, Larson argued, because the roadway showed no signs Sletten tried to brake and eyewitnesses said she did not brake or try to evade the SUV before crashing into it.

Larson argued this led troopers to believe distracted driving was at play in the crash.

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But Quick argued there was hardly anything incriminating about the phone.

He wrote that cellphones are a part of everyone’s daily life and that neither of the two witnesses to the crash saw Sletten using her phone.

One of the witnesses said he saw Sletten’s vehicle pass him on the interstate and was traveling about 200 yards behind her vehicle when the crash occurred. The other witness saw the accident through his rearview mirror.

“Law enforcement merely thought that Ms. Sletten’s cellular phone could be present in the car, and the cell phone could have been involved in the accident. The mere belief that something is possible is not sufficient to rise to the level of probable cause,” wrote Quick.

Quick suggested at a motion hearing earlier this month that Sletten perhaps did not have enough time to apply her brakes, seeing as one of the witnesses said Myers braked abruptly.

The judge has yet to rule on the motion.

Related Topics: CRIME
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