Raided Smoke Shops Back In Business

[User]

Last December, dozens of police and deputies raided 11 North County head shops and smoke shops, seizing thousands of smoking devices and citing the clerks who sold them for allegedly furnishing drug paraphernalia.

At that time, law enforcement leaders and mayors from Vista, Escondido and San Marcos said the crackdown signaled the region's refusal to continue pretending that pipes and bongs, which are commonly used for smoking pot, were for legal tobacco use.

A year later, it's still easy to buy a bong in North County, and many of the raided shops are operating much as they were.

Deputy District Attorney Damon Mosler, chief of narcotics prosecutions at the time of the raids, acknowledged the operation was a limited success. He said they did remove some pipes and bongs from shelves and forced at least one Vista shop to close. And shopkeepers who sell the devices know they do so at their peril, with raids and arrests possible at any time.

But it remains unclear whether prosecutors can prove that selling pipes and bongs is a crime, or if raiding and citing shops that sell them is legal. A North County judge ruled that some search warrants filed in the operation failed to establish that a crime was occurring at the shops. He ordered thousands of seized devices returned.

And it is uncertain whether more raids are planned. Mosler is no longer with the DA's narcotics unit, and a deputy district attorney with the unit who handled many of the North County prosecutions, David McNees, said the unit has, for now, shifted its attention to medical marijuana dispensaries.

The crackdown

In December 2008, after consulting with prevention groups and police, Mosler said he became convinced the shops were, in fact, breaking the law.

To avoid trouble, they post signs declaring the merchandise is for smoking tobacco, and clerks are usually well-trained to eject anyone who talks about pot in the shops, he said. But the stores often have names that reference the drug culture, and they sometimes sell T-shirts, magazines or posters celebrating marijuana. Those things are legal, but they show the pipes are intended for drug use, Mosler said.

And, Mosler said, there was wide community support for trying to rein in the stores.

In last year's operation, the DA's office sent letters to 20 shops in Escondido, San Marcos, and Vista warning them they were subject to prosecution if they continued selling drug paraphernalia.

An undercover detective from the Narcotics Task Force later entered the shops, Mosler said. Nine shops, mostly mom-and-pop tobacco shops that had stocked a few incidental marijuana pipes, had complied.

But search warrants subsequently were served at seven shops in Escondido, two in Vista and two in San Marcos, and 11 clerks were cited after they sold pipes to the undercover detective, the prosecutor said.

Mosler said he could not quantify the cost of the raids, but he called them relatively small-scale. Two detectives visited the shops, and several dozen deputies or officers and some non-sworn personnel worked in Vista, Escondido and San Marcos over two days, according to participating agencies. Officers served search warrants, cited clerks and spent about a half-day at each shop packaging and seizing products.

Mosler said that overall, he thought the raids and prosecutions were worthwhile.

He pointed to the tobacco shops that stopped selling marijuana pipes after a warning. One Vista shop, Odyssey Smoke Shop, shut its doors after its merchandise was seized and has not reopened.

Mosler said getting businesses to change requires ongoing enforcement. He said more smoke shop citations and raids could happen if law enforcement and city leaders make that a priority.

Escondido Special Investigations Unit Lt. Craig Carter said nine local shops are facing another enforcement action. He said the shops are operating illegally and have been warned to expect police.

Vista sheriff's Capt. Tim Curran and Sgt. Dave Schaller, with the San Marcos sheriff's community-oriented policing team, said there are no plans for more operations in their cities.

Curran said he believed Vista currently has no retail head shops.

Searches illegal

Any future operations would have to be more thorough, Mosler acknowledged. He said mistakes in detective work and the search warrants he signed helped some shops reopen.

And it is still not clear whether the shops are breaking the law. None of last year's cases went before a jury.

In March, a North County judge ruled that about 4,000 seized items must be returned to the owners of Escondido's Smokin' Glass store on Felicita Road, and Vishions on El Norte Parkway, after Attorney Richard Barnett successfully argued the search warrants and seizures were illegal.

The judge ruled that the items had been improperly seized, and that the search warrant affidavits in the operation had not established probable cause to believe a crime was occurring in the shops, court documents show.

In a court motion, Barnett argued that the search warrants served at head shops across North County shared a weak, boilerplate explanation that the stores sold items that could be used to smoke marijuana.

"But selling paraphernalia that could be used to smoke marijuana is not a crime under California law," he said.

An undercover detective purchased pipes at the shops, but he and the clerks never talked about marijuana, Barnett said.

Without that discussion, or other evidence, there was not cause to believe the clerk should have known the pipes would be used for drugs, rather than smoking tobacco, the motion argued.

Barnett also said there was no evidence in the search warrant that the stores' stock was illegal drug paraphernalia, subject to seizure.

The state's Health and Safety code defines drug paraphernalia as products, designed or marketed for drug use, he said.

The shops, he argued, market the pipes for tobacco use.

Proving the charges

Mosler said prosecutors have learned their lesson. In the future, he said, detectives must gather more evidence to demonstrate that the clerks and the shops know they are selling the devices for marijuana use. Such evidence can come from "experts," who testify about the shops' real purpose, the shop names and ancillary products that reference marijuana, he said.

A jury has never weighed in on any of the cases resulting from last year's raids in the North County, East County and South Bay, Mosler said.

Nine of the 11 North County clerks cited for furnishing drug paraphernalia settled their cases with the district attorney's office, agreeing to probation or drug classes, mostly in return for expunged charges. One clerk never showed up to court; a bench warrant for his arrest was issued.

Attorney Isaac Blumberg represented two clerks cited in last year's operation. They agreed to plead guilty to disturbing the peace and received a sentence of probation. Blumberg said he's not sure a prosecutor could have proven those clerks were knowingly furnishing drug paraphernalia.

"I think we could have gone forward to a jury trial and forced this issue," he said.

It appears one person may be doing that.

Frederick Danielsen, 47, was charged with furnishing drug paraphernalia at the now-closed Odyssey Smoke Shop on East Vista Way in Vista.

Neither Danielsen nor his lawyer could be reached for this story.

Court records show Danielsen is scheduled for a jury trial Dec. 7.


NewsHawk: User: http://www.420magazine.com/
Source: nctimes.com
Author: SARAH GORDON
Copyright: 2009 North County Times - Californian
Contact: Contact Us - North County Times/The Californian
Website: REGION: Raided smoke shops back in business