Ninety days in jail, four years probation in Aspen drug case

Rick Carroll
The Aspen Times
Aspen CO Colorado

ASPEN – A district judge sentenced an Aspen man to 90 days in Pitkin County Jail on Monday along with four years of supervised probation for possession of 4 grams of cocaine.

The sentencing hearing of Thomas Simmons, 23, wrapped up a case that authorities had once heralded as one of the Aspen Police Department’s biggest drug busts in recent memory.

But the case bogged down because of a mistake by police during the course of their investigation, prompting the District Attorney’s Office to drop felony drug-distribution charges against Simmons as part of a plea agreement.

District Judge Gail Nichols said that “in the long run, this has proved to be very good for the community,” noting that authorities’ seizure of the drugs “stopped some distribution” and that Simmons now appears to be on the right track.

Prosecutor Andrea Bryan painted Simmons as an addict who sold drugs to feed his habit and earn a living.

“He committed this new offense while on probation for drug-distribution charges in Garfield County,” she told the judge.

Simmons’ court-appointed attorney, however, portrayed him as a child who had a less-than-ideal life growing up.

“His father was in prison when he was born and has never been involved in Thomas’ life at any stage,” Garth McCarty said.

McCarty noted that Simmons has displayed a “Zen-like tranquility” since the February 2012 arrest and has come to grips with his addiction.

“This kid is salvageable,” McCarty said. “I think left to his own devices, he is salvageable. But with probation, he is more than salvageable.”

Simmons caught a break in the case because the Aspen Police Department’s Jeff Fain misidentified him from the Belly Up nightclub’s video surveillance. Fain believed the video showed Simmons tampering with evidence in a December 2011 drug-dealing case against another person. The officer used the identification at the time to get a warrant to arrest Simmons at Belly Up on Feb. 4, 2012.

Police also said they had been building a case against Simmons since November 2011 after an anonymous parent sent the department a letter accusing Simmons of dealing drugs to the author’s 17-year-old daughter.

When police arrested Simmons, they found in his possession 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 found nearly $10,000 in cash; 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.

McCarty later filed a motion to suppress all of the drug evidence, contending that the search warrant was invalid because it was based on false premises. And the drug evidence police seized, McCarty said, constituted “fruit of an illegal arrest.”

A veracity hearing, in which Fain would have testified about the methods he used in the case leading up to the arrest, was vacated with the plea deal. McCarty had planned to show that Fain was in a rush to make an arrest and that his erroneous identification of Simmons validated that argument.

At Monday’s hearing, Bryan said the police made “an honest mistake.”

“The Aspen Police Department has acknowledged it, and the people are (also acknowledging it) through this plea agreement,” she said.

Simmons originally faced four felony charges of distribution of a Schedule I substance – Ecstasy, LSD and mushrooms. Each carried a mandatory minimum of four years in state prison and as much as 16 years. He also faced one count of sale of a Schedule II substance, cocaine, and felony charges of possession of more than 4 grams of Ecstasy, mushrooms and cocaine.