Prosecutor: Evidence in drug case should not be suppressed

by Chad Abraham, Aspen Daily News Staff Writer

The Aspen district attorney’s office contends that crucial evidence and statements in one of the upper valley’s largest drug seizures should not be suppressed despite a case of mistaken identification by police that helped to allegedly uncover multiple ounces of cocaine and ecstasy.

According to a prosecution filing made Friday, Aspen police officer Jeff Fain’s conduct in the investigation did not rise to the level of a “reckless disregard for the truth.” Three Aspen police officers reaffirmed Fain’s identification of a suspect in a drug-tampering case — a conclusion later found to be erroneous — that led to the arrest of Thomas Simmons, 22, Chief Deputy District Attorney Arnold Mordkin wrote in his response opposing a suppression motion filed by Garth McCarty of Glenwood Springs.

Simmons is charged with eight distribution- and possession-related felonies. McCarty, who is representing Simmons, filed earlier this month a motion to suppress the drugs that were allegedly found on his client’s person and in his apartment, and statements that Simmons allegedly made.

McCarty argues that Fain’s arrest of Simmons came after a “reckless” investigation involving an anonymous letter purportedly from a father concerned about drug dealing and video surveillance from another man’s drug arrest at the Belly Up.

The letter names Simmons and his apartment, and says he was selling cocaine, ecstasy and marijuana.

Fain obtained a photo of Simmons and “made observations of [him] in and around locations in Aspen similar to those where the letter stated the defendant was selling drugs,” Mordkin wrote.

Fain arrested a former Aspen resident, Max Puder, at the Belly Up for selling drugs on Dec. 24, 2011, and later observed surveillance footage showing another man trying to hide a baggie that the arrestee dropped.

Fain, observing the video with Belly Up manager Siobhan Greene, identified the person tampering with the evidence as Simmons.

Mordkin’s response says that Fain consulted with three other officers who also concurred that it was Simmons.

Using that consensus; the anonymous letter; Puder’s cell phone, which allegedly had Simmons’ name in it; and the fact that Greene did not contradict Fain when he stated it was Simmons on the surveillance footage, Fain on Feb. 3 obtained an arrest warrant for Simmons.

Fain arrested him the next day at the Belly Up, allegedly finding on him several pouches containing cocaine and ecstasy. That led Fain to obtain a search warrant for Simmons’ Park Avenue apartment, where he and other officers found large quantities of the same drugs, along with LSD and psilocybin mushrooms, according to a police report.

The alleged seizure indicates that Simmons “was conducting a major drug distribution operation in the upper Roaring Fork Valley,” Mordkin wrote.

Five days later, though, police met with Greene, and she said that a photo of Simmons published in local newspapers after his arrest was not the same man who had tried to hide the ecstasy Puder dropped. The tampering charge against Simmons was dismissed, and two others were arrested and have since pleaded guilty.

Because of that development, McCarty is arguing that the drugs, and the search which allegedly discovered them, should be suppressed because there was no probable cause in the first place to arrest Simmons.

But Mordkin argues that Simmons must show that the source of Fain’s mistake was an “intentional falsehood or was made with a reckless disregard for the truth,” the response says.

Because of the lengths Fain went to, including corroborating with other officers, citing the anonymous letter and the like, neither the “intentional falsehood” nor the reckless disregard thresholds have been met, Mordkin’s response says.

He cites one case in which a judge ruled that there “must be allegations of deliberate falsehood or of reckless disregard for the truth” and “allegations of negligence or innocent mistake are insufficient.”

Further, Mordkin argues that Fain’s arrest of Simmons benefits the Aspen community because of the drugs allegedly seized.

Any “benefit to society of the suppression of any evidence in this case ... would not outweigh the substantial costs to society of letting a guilty man go free,” the response says.