Motions hearing set for next week canceled
An Aspen man who was arrested in what authorities said was one of the largest drug busts in recent memory could receive probation as part of a plea agreement.
The lawyer for Thomas Simmons, 23, said Tuesday that the plea deal needs to be finalized. But the “general concept of the disposition” is that Simmons will plead guilty to a felony charge of possession of more than 4 grams of a controlled substance and receive probation, said attorney Garth McCarty of Glenwood Springs.
Seven other felony counts of distribution and possession would be dropped if Judge Gail Nichols of Pitkin County District Court accepts the agreement at Simmons’ next hearing March 4. Without the plea deal, he faces a minimum of 12 years in prison if convicted on all the charges.
The length of probation that McCarty and Aspen deputy district attorney Andrea Bryan will recommend to Nichols has not been established, McCarty said.
A motions hearing set for next week, in which McCarty was to argue that an Aspen police officer acted with a “reckless disregard for the truth” and that evidence should be suppressed, has been canceled.
It was a case of mistaken identity by Aspen police officer Jeff Fain that led to Simmons being arrested Feb. 4, 2012, at the Belly Up.
Police initially detained Simmons on a tampering-with-evidence charge. Authorities mistakenly believed he was caught on the concert venue’s surveillance footage trying to hide two bags of ecstasy that another man dropped when he was arrested Dec. 24.
The tampering charge was soon dropped, and two other men have since pleaded guilty for roles in trying to hide the ecstasy, as did the man who dropped the baggies. Simmons could join them in receiving probation.
Simmons’ name was also in a letter, purportedly from the anonymous father of a teenage girl who had allegedly bought drugs from Simmons, that was mailed to the Aspen Police Department from Grand Junction.
When Simmons was arrested on a warrant for the tampering charge, he had on his person 16 baggies containing cocaine and ecstasy, Fain testified in September.
That led to police obtaining a search warrant for his vehicle and Park Circle home. In the early hours of Feb. 5, according to the warrant, police uncovered 4.6 ounces of ecstasy and 1.6 ounces of cocaine hidden above a ceiling tile; 27 doses of LSD; a large blue pill of ecstasy; four pills of alprazolam (often sold as Xanax); several glass cylinders that Fain wrote are commonly used to consume small amounts of cocaine; and a digital scale.
In a seat with a false bottom was nearly an ounce of psilocybin mushrooms, a bag of empty gelatin capsules and a metal cylinder that is used to crush pills into powder, Fain wrote.
Elsewhere in the home, police found two foil-wrapped chocolates believed to contain marijuana or psilocybin in the freezer and five more of the chocolates in a sock drawer; a baggie with several gelatin capsules in it that are believed to be ecstasy; and 4.4 grams of hash, the warrant says.
Then-Aspen deputy district attorney Arnold Mordkin told Nichols that the case against Simmons was “extremely strong.”
“He is clearly on his way to state prison,” Mordkin said in court a few days after Simmons’ arrest.
But McCarty attacked the initial and subsequent warrants, writing in a motion that Fain’s investigation was “reckless, dishonest and incompetent.”
Fain reviewed surveillance video of the Dec. 24 arrest with Belly Up general manager Siobhan Greene, according to the arrest warrant.
Greene told Fain that she didn’t know the name of the man that appeared to be hiding the drugs in the video, and couldn’t confirm if it was Simmons. She did say she was certain she had seen the person several times in the venue, knew him on sight and could identify him.
However, Fain, confident that the man on the video was Simmons, failed to ask 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.”
When Greene told police — after Simmons’ arrest — that the person trying to hide the baggies was not Simmons, Mordkin dropped the tampering charge.
McCarty said in an interview Tuesday that if the warrants are called into question, Nichols can suppress the evidence that emerged from his client’s arrest and the search of the home.
“My motion explicitly says that, at best, [Fain] was acting with a disregard for the truth,” McCarty said.
Mordkin rebutted the defense’s argument, saying in a court document that while Fain may have misidentified Simmons on the surveillance footage, the officer’s conduct included neither an “intentional falsehood” nor a reckless disregard for the truth.
Three Aspen police officers reaffirmed Fain’s identification of Simmons, Mordkin wrote. He also argued that Fain’s arrest of Simmons benefited the Aspen community because of the drugs allegedly seized.
Bryan, who replaced Mordkin, declined comment Tuesday on the plea agreement. But she said in an email that her office continues to agree with Mordkin’s stance.
Prosecutors “maintain, as argued in [Mordkin’s] brief, that the officer, in obtaining the arrest warrant, made a good-faith, human mistake,” Bryan said.