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December 1, 2012
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In drug case, Aspen police methods are also on trial

ASPEN - Everything seemed to fall perfectly in place in February, when Aspen police arrested Thomas Simmons on drug-distribution charges.

Their evidence included a letter from an anonymous father, who accused the Aspen man of selling illegal narcotics to his teenage daughter. A video from an Aspen nightclub showed a person they believed was Simmons trying to conceal evidence left behind from a botched drug deal. And when they arrested Simmons, they found enough drugs on him to get a warrant to search his apartment and car.

The resulting haul was big enough for prosecutor Arnold Mordkin to deem it one of the biggest drug busts in recent memory and for the Aspen Police Department to issue a press release - authorities had seized 134.7 grams of MDMA; 21 hits of LSD; more than 27 grams of psilocybin mushrooms; 4.4 grams of hash; 46.5 grams of cocaine; a ledger identifying Simmons' customers and how much they owed him; nearly $10,000 in cash, of which $7,900 was found in his sock drawer; and pills, scales and cylinders, among other items.

"I think you understand you've kind of hit the big time," Pitkin County District Judge Gail Nichols told Simmons at his first court appearance Feb. 6, when she advised him of the charges of possessing and distributing the drugs. The judge also noted, "The evidence is extraordinarily good, which is bad for you."

Nearly 10 months later, the very evidence that could lock Simmons away for years might not even be used against him.

That's because the methods police used to arrest Simmons have drawn the scrutiny of his defense attorney, who claims that police compromised the suspect's constitutional rights in an "overzealous rush to make a bust." Despite the police department's flawed investigation, however, Mordkin contends that arresting officer Jeff Fain acted in good faith when he misidentified Simmons in an evidence-tampering case that led to the drug bust.

Left to sort through the arguments is Nichols, and the case's fate could come down to how she rules on an evidence-suppression motion, which Simmons' lawyer, Garth McCarty, of Glenwood Springs, filed Nov. 4.

McCarty argues that the evidence should be thrown out on the basis that Aspen police mistakenly identified Simmons in a witness-tampering probe, which led to the drug bust. Mordkin, in a court filing Nov. 16, contended that the drug arrest was valid despite the police department's misstep in the tampering investigation.

Each count against Simmons carries a mandatory minimum of four years and as much as 16 years in state prison.

Simmons likely will walk if Nichols throws out the evidence, which is the crux of the prosecution's case.

McCarty and Mordkin have ramped up their arguments in recent weeks, most recently on Tuesday, when McCarty filed a brief reiterating the dismissal of the evidence. McCarty wrote that Simmons' arrest was the product of "incompetent investigations by the Aspen Police Department" and that the 9th Judicial District Attorney's Office is attempting "to airbrush the flaws in the Aspen Police Department's investigation."

In Mordkin's recent filing, he quotes Supreme Court Chief Justice John Roberts from a 2009 drug-suppression ruling to make his case. Despite the police department's mistake, Mordkin offers that "the criminal should not 'go free because the constable has blundered.'"

On Christmas Eve, Fain spotted Max Puder, who was 18 at the time, conducting a drug transaction on the exit stairs of Belly Up Aspen. Fain used a stun gun to apprehend Puder when he tried to get away. (Puder has pleaded guilty to possession of more than 4 grams of a Schedule 1 substance and will be will be sentenced in January.)

When Puder fled the scene, he also discarded a package containing "Molly," a street term for Ecstasy when it's in a powdery form.

At the time, another person in the vicinity tried to move the drug out of plain view by sliding it with his feet. A Belly Up security camera would show the man who did it, and Fain reviewed the video footage on Jan. 22, along with a nightclub employee, according to reports.

Fain was confident that it was Simmons who tried to conceal the drugs Puder had discarded. The Belly Up employee was not so sure, according to court filings.

Fain had become familiar with Simmons and had a prior booking photo of his to compare with the video. Indeed, Simmons had been a person of interest for the Aspen Police Department since Nov. 29, 2011, when it received an anonymous letter, which the teenage girl's father purportedly wrote. The father claimed that Simmons had sold drugs to his daughter.

Fain showed the video and Simmons' mugshot to other police officers. Mordkin, in his Nov. 16 filing, said Fain used "an overabundance of caution" to confirm that Simmons' booking photo was a match with the Belly Up video.

It was enough for Fain to get a warrant to arrest Simmons, which Judge Nichols signed. The charge: tampering with evidence, a felony.

On Feb. 3, Fain and another officer went to Simmons' Aspen apartment, but he wasn't there. They found him later that night at Belly Up. They also found him in possession of cocaine and Ecstasy, according to court records. Their discovery of drugs on Simmons was enough to persuade Nichols to sign a warrant allowing police to search the suspect's apartment and car.

Both The Aspen Times and Aspen Daily News reported the arrest. The newspapers also ran Simmons' mugshot. When the Belly Up employee who reviewed the video with Fain saw his photo in the newspaper, she contacted police. They had the wrong guy, she told them.

On Feb. 9, Mordkin dropped the tampering charge, but the drug charges stuck.

The way McCarty views it, all of the drug evidence police collected in the drug case against Simmons should be dropped. That's because the search warrant was invalid, "which was in turn based upon an invalid arrest warrant, and without probable cause or exigent circumstances to justify a warrantless search." In courtroom parlance, the evidence is known as "fruits of the poisonous tree."

In his Tuesday court filing, McCarty contended that Fain was "under no time, resource, or safety restrictions" to arrest Simmons on suspicion of evidence tampering. He referred to Fain's arrest of Simmons as an "overzealous rush to make a bust" and his "personal indifference to the truth."

"Police training, procedure and - frankly - common sense would lead a reasonable police officer to conduct and identification procedure," McCarty wrote.

McCarty accuses Fain of using "dim-wittedness" during his investigation, for which there "is no excuse."

"Our taxpayers offer salaries to, and invest in training for, our community police officer with an expectation that the officer follow procedure and do their job by the numbers, following facts and evidence, not hunches, intuition or ambition," he wrote.

McCarty's recent filing called for the judge "to take action (against Fain and the Aspen Police Department) to correct their mistakes and deter them from repeating these mistakes in the future. This community needs better, more honest and respectful police work, and this Court has the opportunity to make it happen."

From Mordkin's point of view, Fain simply made a mistake and acted in good faith. He demonstrated that by having his fellow officers review the video, Mordkin wrote.

That reason alone is why Nichols should uphold the evidence, the prosecutor wrote. Mordkin's brief cites both state and case law. He also stated that McCarty has the burden of proof of showing that Fain was reckless in his investigation into Simmons.

rcarroll@aspentimes.com


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The Aspen Times Updated Dec 2, 2012 08:43AM Published Dec 1, 2012 11:43PM Copyright 2012 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.