Judge's order that Lexington police must return smoke-shop items is latest twist in synthetic-drugs case

jkegley@herald-leader.comJanuary 26, 2013 

Police raided The Botany Bay on Winchester Road this summer, and the owner was charged with trafficking in synthetic drugs and possession of drug paraphernalia.

The Lexington police department will have to give back hundreds of glass pipes, bongs, vaporizers and other items confiscated from a local smoke shop if a judge's recent order stands.

The merchandise was taken from The Botany Bay on Winchester Road on Aug. 20. The police raid, prompted by tips that the store was selling synthetic marijuana, led to misdemeanor charges of synthetic drug trafficking and possession of drug paraphernalia against the store's owner, Ginny Saville.

This month, Fayette District Court Judge Kim Wilkie granted Saville's motion to have some of the items returned to her, according to court records. Wilkie's ruling was the latest twist in the case, in which Saville has challenged Lexington police procedure as well as the state's definition of synthetic drugs.

Police took about $40,000 worth of smoking accessories and about 7 pounds of synthetic marijuana, according to a warrant filed in district court. The drug contained a mind-altering chemical mixture that is illegal but is not explicitly listed among banned substances in Kentucky, according to court documents and people involved in the case.

Most of the confiscated items — which also included rolling papers, digital scales, potpourri and herbal supplements — are legal merchandise, said Tucker Richardson, Saville's attorney.

"They're legal items that you can sell, and we want them back so we can sell them," he said.

Despite the judge's ruling on Jan. 16, police have not returned the items pending the outcome of a motion prosecutors filed last week. The Fayette County Attorney's Office, which is prosecuting Saville, requested a hearing to clarify which items have to be returned and which items are still considered evidence.

The county's position is that "this is evidence of a crime," said First Assistant County Attorney Lee Turpin. "If a jury finds that this is illegal drug paraphernalia, then it should not ever be given back — it would be confiscated or forfeited."

A hearing on the matter was scheduled for Wednesday. Lexington police spokeswoman Sherelle Roberts said police would abide by the judge's ruling.

"We always follow the directions of a court order, and would do so in this instance," she said.

A message left at Wilkie's office Friday afternoon was not returned.

Friends and colleagues of Saville turned out in droves to witness and document the Aug. 20 raid; several said they saw police break a lot of the hand-crafted glassware when they were loading it into boxes marked "evidence."

"We watched them toss things into boxes, breaking them as they were doing it. The destruction was readily apparent and substantial," said David Adams, a friend of Saville's and spokesman for her business. "What they're doing is they're levying a penalty without any due process whatsoever. That's simply unacceptable in a free society."

Adams said Saville's friends and employees suspect that's part of the reason police and prosecutors don't want to return the items. However, Roberts and Turpin said Friday they didn't think the items were smashed, though neither had inspected the evidence personally.

"The important thing to remember is that it is evidence, so it is important for it to be whole and unbroken," Roberts said.

Turpin noted that Saville and her attorney can set up an appointment to view evidence, which is stored at police headquarters. She didn't think they had done so.

Though the case has been pending for months, a trial date had not been set Friday. Several motions are pending a judge's ruling, including a motion filed by Richardson to dismiss the case on the grounds that Saville's constitutional rights allegedly were violated by a state law that is too broad.

The definitions of synthetic drugs in Kentucky are "so technical, scientific and obscure that it provides no notice whatsoever to persons of ordinary intelligence as to what conduct is prohibited, thereby depriving them of the due process of law," the motion said.

The chemical compound in the drugs confiscated from The Botany Bay has been banned in at least five states, but it does not fit into the classes of cannabinoids specifically banned in Kentucky. Last spring, a provision was added to Kentucky's synthetic drug laws to prohibit "any other synthetic cannabinoid or piperazine that is not approved by the United States Food and Drug Administration, or if approved, which is not dispensed or possessed in accordance with state and federal law."

Police and prosecutors have said the drugs seized from The Botany Bay fall under that provision.

Josh Kegley: (859) 231-3197. Twitter: @HLpublicsafety.

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