Misidentification throws ‘wrench’ into Aspen drug case, judge says | AspenTimes.com

Misidentification throws ‘wrench’ into Aspen drug case, judge says

Rick Carroll
The Aspen Times
Aspen, CO, Colorado
Thomas Jade Simmons

ASPEN – The public defender who represents an Aspen man charged with multiple felonies for drug distribution said in court Monday that there’s “high chance” she will make a bid to suppress incriminating evidence against the suspect.

The remarks from Tina Fang, who heads the Public Defender’s Office for the 9th Judicial District, came after the Aspen Police Department said Friday it misidentified Thomas Jade Simmons, 22, in video surveillance it said showed him tampering with evidence in a drug-dealing case against another person.

After police arrested him Feb. 11 for a tampering charge stemming from the Dec. 24 incident, they found him in possession of cocaine and Ecstasy. That led police to execute a search warrant on his apartment and car, where they found enough drugs to spawn distribution charges.

On Friday, prosecutor Arnold Mordkin filed court papers saying he would not pursue the tampering charge after the police realized their mistake.

But the question now is whether the drugs police collected from Simmons after his tampering arrest can survive the scrutiny of the court.

“There is a wrench in this warrant,” District Judge Gail Nichols said. “It’s not overwhelming as it was.”

Said Fang: “The Aspen Police Department completely misidentified a person they suspected of tampering. … That really raises concerns.”

Fang also asked Nichols to reduce Simmons’ cash-only bond from $50,000 to $10,000. Nichols kept the bond at $50,000 but changed it from a cash-only to cash-surety bond, which means Simmons can use a bondsman to get out of jail. The judge noted that Simmons is a longtime valley resident and that he never missed a court appearance related to his previous cases in Garfield County.

Mordkin, however, said Simmons is a risk to flee. That’s because, Mordkin said, he faces mandatory minimum four-year prison sentences if he’s convicted on any one of the four charges that allege he sold cocaine, hallucinogenic mushrooms, Ecstasy and LSD. Simmons also is charged with possession of the same drugs.

“He is a considerable flight risk now,” Mordkin said. “The evidence is overwhelming.”

Yet the prosecution’s case against Simmons, at least as far as Fang is concerned, doesn’t appear as strong as it did at the time of his arrest.

“There are problems I see developing with this case,” she said in court. “And I wonder what issues will arise with suppression.”

Nichols told Simmons that while the case against him has taken on a new posture, she did not want to “mislead” him about how it could develop.

“The evidence is overwhelming, as long as the warrants are good,” the judge said. “I don’t know the impact the misidentification will have on this case. Mr. Simmons, it might have no impact at all. I just don’t know.”

After police made their initial arrest of Simmons at Belly Up for evidence tampering, 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 for evidence tampering, an act police say Simmons committed Christmas Eve 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 illegal narcotic near the steps outside Belly Up, authorities allege.

Police, in an affidavit to the arrest warrant, said they had obtained video evidence from the 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.

Shortly after 4 p.m. Friday, the police department issued a press release saying that it “recognized an individual other than the person originally identified, Simmons, may have committed the offense of tampering with evidence.”