A suppression motion filed Monday by the attorney for a local man accused of dealing drugs says an Aspen police officer lied to a judge about evidence in the case in order to obtain an arrest warrant.
Thomas Simmons’ lawyer, Garth McCarty of Glenwood Springs, said the investigation by officer Jeff Fain was “reckless, dishonest and incompetent.”
Simmons, 22, is charged with eight distribution- and possession-related felonies.
His arrest and the subsequent charges stemmed from an anonymous letter and a case of mistaken identity.
Fain began investigating Simmons in November 2011, after the letter, purportedly from a concerned father, arrived at the police department. The letter names Simmons and his apartment, and says he was selling cocaine, ecstasy and marijuana “to people of all shape, size and age, including my 17-year-old daughter.”
With the Dec. 24 arrest of former Aspen resident Max Puder, who was detained at the Belly Up and charged with felony drug distribution, Simmons again received police scrutiny.
Fain reviewed surveillance video of Puder’s arrest with Belly Up general manager Siobhan Greene, according to the arrest warrant. The video showed Puder drop two baggies of ecstasy during his arrest and another man walk up and try to conceal the drugs while Fain was placing Puder in a police vehicle.
“During the viewing, Ms. Greene told officer Fain unequivocally that she recognized the white male depicted in the video,” McCarty’s motion says. “Officer Fain stated to Ms. Greene that he already knew who the male was: Thomas Simmons.”
Greene told Fain that she didn’t know the man’s name and couldn’t confirm if it was Simmons, but that she was certain she had seen the person several times in the venue, knew him on sight and could identify him, the motion says.
“Despite having photographs of Mr. Simmons and having the time and resources to conduct an identification procedure ... officer Fain did not ask Ms. Greene to make a proper identification, and did not even simply show her a photograph of Mr. Simmons,” McCarty wrote. “Officer Fain made no attempt to confirm or dispel his belief that the individual Ms. Greene recognized was in fact Mr. Simmons.”
After Greene told police that the person trying to hide the baggies was not Simmons, and identified another man as the suspect (that man and another person eventually pleaded guilty to misdemeanors), Chief Deputy District Attorney Arnold Mordkin dropped the tampering charge against Simmons.
But prior to that revelation, citing, among other evidence, the video footage and the anonymous letter, Fain obtained from Judge Gail Nichols of Pitkin County District Court an arrest warrant for Simmons for tampering with evidence.
“Mr. Simmons believes that officer Fain, having chosen not to obtain an identification of Mr. Simmons from an eyewitness, outright lied to this court, intentionally deceiving [Nichols] into believing the evidence against Mr. Simmons was stronger than it actually was,” McCarty’s motion says.
In February, Fain and other officers used the second warrant to search Simmons’ apartment, where they allegedly found multiple ounces of ecstasy and cocaine, along with LSD and psilocybin mushrooms. He was arrested.
McCarty took particular exception to one justification Fain used to get that warrant.
The officer wrote that he found Simmons’ Facebook page, where the defendant had posted, “Thx fr all the bday wishes!! Had a crazy good time last weekend in aspen and denver, the two best places in CO!”
Fain then wrote in the search warrant application that with his training and experience, “I know that drug dealers commonly use vehicles to transport large quantities of controlled substances, and said drug dealers commonly go to large metropolitan areas to purchase said quantities.”
McCarty called that a “bizarre assertion” so lacking in reliability “that it fails to pass the straight-face test.” Seeking a veracity hearing about both warrants, the attorney wrote that Fain’s statement calls into question the officer’s overall credibility.
“I occasionally find myself venturing to Denver for the weekend by way of a vehicle and am surprised and unsettled to learn that officer Fain fancies himself trained and experienced to conclude that my behavior is indicative of high-quantity drug trafficking,” McCarty wrote. “This outrageously unsubstantiated, disingenuous allegation lacks any credibility whatsoever and the court should strike it as untrue, asinine and unreliable.”
And in an email Wednesday, McCarty said the letter from the father should not have been a factor in the case because Aspen police lacked any reason to believe the letter’s author or the information provided was reliable.
There must be some indication of reliability for evidence offered through a source, McCarty said.
“Oftentimes this plays out where the source is a confidential informant,” he said. “While the officer need not disclose the person’s identity, the common practice is to demonstrate the informant’s reliability by including information about how often the informant has given accurate information in the past, etc. Here, there is absolutely nothing to demonstrate the reliability of the anonymous author’s information.
“Fain himself could have written the letter.”
Fain, who has been with the department for six years, declined comment Wednesday. Aspen Police Chief Richard Pryor said he couldn’t speak about the specifics of the case because it is ongoing.
But Pryor said that while “none of us are perfect, I believe our officers work with the best interest of the community at heart.
“I certainly don’t believe we have police officers running around doing their own things,” he said. “We’re here to look out for the community.”
McCarty is seeking to have all of Simmons’ statements and all evidence and observations suppressed, alleging that Fain’s arrest was illegal because it involved an invalid warrant.
Mordkin declined comment when asked if he thought Fain presented misleading information to Nichols. He said he intends to file a response to the suppression motion later this month.
A hearing on the motion is set for Dec. 4.