Police blunder waters down Aspen drug case | AspenTimes.com
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Police blunder waters down Aspen drug case

ASPEN – One of the Aspen Police Department’s biggest drug busts in recent memory flamed out Monday when the defendant pleaded guilty to cocaine possession under an agreement with prosecutors that he not serve any jail time.

The plea by Thomas Simmons, 23 – guilty of possessing more than 4 grams of cocaine – still awaits approval from Pitkin County District Judge Gail Nichols.

“I do have some concerns about this deal,” she said in court, noting that she will base her determination on the findings of the pre-sentence report. Simmons is scheduled to be sentenced April 15.

The pending plea agreement signaled that the prosecution recognized the potential problems the case posed.

“Through this deal, we are acknowledging that an unfortunate mistake was made by police,” Deputy District Attorney Andrea Bryan said after Monday’s hearing.

That mistake happened when the Aspen Police Department’s Jeff Fain misidentified Simmons 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 allegedly 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 allegedly 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.

The evidence, however, was on shaky ground after police, days later, realized it was not Simmons in the surveillance video.

Simmons’ attorney, Garth 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. Bryan, however, said it was a “good-faith mistake on the part of law enforcement because they are human.”

She added, “We vehemently dispute how this was characterized by the defense.”

McCarty, in a court filing, had claimed 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.”

As part of the plea agreement, Bryan also agreed to drop the other charges against Simmons.

Aspen Police Chief Richard Pryor, in a prepared statement, said: “We trust the judgment of the D.A.’s office related to the prosecution of this case and are pleased that it has been resolved. We appreciate the level of communication the D.A.’s office maintained during the prosecution of this and other cases and we look forward to a productive working relationship moving into the future.”

Simmons originally faced four felony charges for 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.

Should Nichols approve the plea deal that was presented to her, Simmons would be on probation for four years.

rcarroll@aspentimes.com


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