SandBoxBlogs: Aspen Times "Not ready to rule, judge leans in Aspen officer's favor in stolen shades case"

Rick Carroll:
"...Around midnight, Fain texted Mulcahy to call him back, and the officer eventually arrested him after a basketball game at the Skier Dome at Aspen High School. Mulcahy said Fain was accompanied by three other officers, who acted like a “SWAT team” when they positioned themselves by the gymnasium's exit doors with about two minutes remaining in the game.

Fain also testified that he did not believe he had probable cause to arrest Mulcahy at Kenichi, but more evidence surfaced that legitimized his warrantless arrest after the game. Fain also said he could have arrested Mulcahy in the middle of the game but elected not to out of respect for the players and those in attendance.

“I thought it would be disrespectful to walk out on the court and arrest him,” said Fain, who detained Mulcahy outside of the gym after the game.

Wills, however, had difficulty accepting that, saying that Fain deliberately tried to embarrass and harass Mulcahy.

“I believe that law enforcement can do their job and still be honest with people and fair,” Wills said. “My problem here is that (Fain) was forcing a bargain by threatening an arrest warrant to get people to waive their statutory and constitutional right to silence. ... Why is Fain in such a huff to get this guy prosecuted? Why is it OK for him to lie?”

If anything, Fain was patient with Mulcahy and gave him ample opportunity to turn himself in or, at the very least, explain himself, Nedlin said. And the judge noted that it's not unusual — and in many instances not illegal — for police to try to coerce a suspect into a confession.

Nedlin also said that Fain rightfully set a $500 bond on Mulcahy after he was arrested. The reason, Nedlin said, was that Mulcahy had three prior failure-to-appear violations, though Wills said those infractions actually stemmed from his nonpayment of traffic fines and court costs, which he later paid...."
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