Judge rules that charges can stick in Aspen narcotics case
September 1, 2012
ASPEN – A judge ruled Friday that there is enough evidence to bind an Aspen man over for trial in what local authorities have deemed one of the biggest drug busts in recent times.
After hearing testimony from Aspen Police Officer Jeff Fain in Pitkin County District Court, Judge Gail Nichols said there is sufficient probable cause to uphold charges against Thomas Jade Simmons, 22.
Nichols noted “overwhelming evidence” showed that Simmons had an intent to distribute such illegal narcotics as cocaine, Ecstasy, LSD and psilocybin mushrooms. Simmons faces four separate felony charges for intending to sell each drug.
Prosecutor Arnold Mordkin’s only witness in the preliminary hearing was Fain. In a preliminary hearing, a judge is tasked with viewing the evidence in a light most favorable to the prosecution, as opposed to a trial – where the prosecution is held to a burden of proof.
All told, police say that Simmons was in possession of more than 250 grams of drugs that he had designs to sell – 124 grams of Ecstasy, 72 grams of mushrooms, 61 grams of cocaine and 0.26 grams of LSD.
When police initially arrested Simmons in February at the Belly Up nightclub in Aspen, they found him allegedly in possession of Ecstasy and cocaine. Later, when he was booked at Pitkin County Jail, authorities discovered more narcotics on his person, prompting police to obtain a warrant to search Simmons’ Park Avenue residence. There, they claim to have found more drugs, as well as paraphernalia, nearly $8,000 in cash, a ledger with the names of Simmons’ alleged customers and more. Among their findings, police said, were mushroom brownies wrapped in tin foil, which were stored in a freezer and bureau, as well as 27 tabs of acid stashed in the ceiling tiles.
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With the preliminary hearing done, Simmons’ defense attorney, Garth McCarty of Glenwood Springs, hinted in court Friday that he would likely challenge the methods police used to arrest the defendant.
“Everybody in this room knows that the beginning of the investigation is fraught with difficulties and mistakes on the Aspen Police Department’s part,” he said.
McCarty was referring to the APD’s misidentification of Simmons in video surveillance, which police said showed him tampering with evidence in a drug-dealing case against another person.
Using a warrant, Aspen police arrested Simmons on Feb. 4 at Belly Up. The warrant was for the charge of tampering, an act police say Simmons committed Dec. 24 at Belly Up following the Ecstasy-distribution arrest of 18-year-old Max Brandon Puder. Puder fled the scene before ultimately being arrested, but discarded the drugs near the outside steps of Belly Up, authorities allege.
Police also believed they had surveillance video from the Dec. 24 incident that implicated Simmons. The video, reviewed by Fain, showed who police thought was 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, according to an application for an arrest warrant for Simmons. Police were not in the vicinity at the time.
The video prompted police to obtain an arrest warrant for Simmons, which Nichols subsequently signed, paving the way for police to apprehend him on tampering charges. Upon the arrest, police found the drugs that put Simmons in deeper trouble.
But later, police determined that Simmons was not the person in the video; Mordkin dropped the tampering charge on Feb. 10, and police subsequently arrested the person they believed tampered with the evidence.
Mordkin has maintained that the tampering arrest was not done illegally and instead in good faith, and the drug distribution and possession charges should still stick.
Prior to Simmons’ arrest, police were in possession of what they say was an anonymous letter from the father of a 17-year-old. The purported father claimed that Simmons had been selling drugs to his daughter.
At Friday’s hearing, McCarty addressed, in brief, the letter when he cross-examined Fain. McCarty contended the letter’s grammar was poor, suggesting that an adult did not pen the note.
“You didn’t believe (the letter) was written by the father of a 17-year-old, did you?” McCarty said.
Fain offered that he had no opinion about the letter’s author.
Simmons is due back in court Sept. 17, when he is scheduled to enter a plea to the charges.