Attorney wants evidence in Aspen drug case suppressed

Rick Carroll
The Aspen Times
Aspen, CO, Colorado

ASPEN – A motion claims that a “reckless, dishonest and incompetent police investigation” was employed to arrest an Aspen man on drug charges earlier this year.

Glenwood Springs attorney Garth McCarty, on behalf of Thomas Simmons, filed the motion Monday in Pitkin County District Court seeking to suppress incriminating evidence that sparked multiple felony drug-distribution charges against the 22-year-old. McCarty’s motion argues that police originally detained Simmons on a case of mistaken identity and that all evidence they collected after that constituted “fruit of an illegal arrest.”

Aspen police touted February’s arrest of Simmons one of the biggest local drug busts in recent memory. He stands accused of selling cocaine, hallucinogenic mushrooms, Ecstasy and LSD. Simmons also is charged with possession of the same drugs.

The suppression motion was expected. Shortly after Simmons’ arrest, his public defender at the time, Tina Fang, said during a Feb. 14 court hearing that there was “high chance” she would make a bid to suppress evidence against the defendant.

Fang’s comments came three days after the Aspen Police Department said it misidentified Simmons in video surveillance it said showed him tampering with evidence in a drug-dealing case against another person.

After police made their initial arrest of Simmons at Belly Up on suspicion of evidence tampering on Feb. 11, they also found on his person 11.6 grams of cocaine and 4.1 grams of MDMA, or Ecstasy, in a powdery form. That finding led them to execute a search warrant on his home and car, where they allegedly found nearly $10,000 in cash and 134.7 grams of MDMA; 1.2 grams, or 21 hits, of LSD; more than 27 grams of mushrooms; 4.4 grams of hash; and 46.5 grams of cocaine.

The drug arrests, however, came after the initial arrest of Simmons on suspicion of evidence tampering, an act police initially said Simmons committed Christmas Eve at Belly Up following the Ecstasy-distribution arrest of then-18-year-old Max Puder. Puder fled the scene before ultimately being arrested but discarded the illegal narcotic near the steps outside Belly Up, authorities alleged.

Police, in an affidavit to the arrest warrant, said they had obtained video evidence from Belly Up that showed Simmons trying to move the drug out of plain view by sliding it with his feet, moving it with his hand and holding a door frame over it. By doing so, Simmons had tampered with evidence, police said.

But two days after his arrest, the Aspen Police Department issued a stattement saying it “recognized an individual other than the person originally identified, Simmons, may have committed the offense of tampering with evidence.”

Simmons later hired free-market attorney McCarty, whose motion says the Police Department began its investigation into Simmons in November 2011, after an anonymous parent sent the department a letter accusing Simmons of dealing drugs to the author’s 17-year-old daughter.

Police Officer Jeff Fain, who handled the investigation, later reviewed surveillance film from the Dec. 24 incident and determined that it was Simmons who tried to move Ecstasy. But the motion says Fain did not confirm Simmons’ identity with a Belly Up employee who also had seen the video footage. The worker said she knew who the person was but not by name, the motion says.

“Officer Fain made no attempt to confirm or dispel his belief that (the Belly Up employee) recognized was in fact Mr. Simmons,” the motion says.

Fain also used the video evidence, which he believed showed Simmons, to convince Judge Gail Nichols to sign a warrant for Simmons’ arrest on suspicion of tampering.

“Relying on the erroneous allegations made by Officer Fain … in support of an arrest warrant, this court approved and issued an arrest warrant for Thomas Simmons,” the motion says.

However, after news of Simmons’ arrest hit the Aspen newspapers, the Belly Up worker contacted Fain to say that Simmons was not the person in the video.

McCarty’s motion contends that the subsequent search of Simmons’ home was based on an “invalid search warrant, which was in turn based upon an invalid arrest warrant, and without probable cause or any exigent circumstances to justify a warrantless search.”