Botany Bay owner still waiting for police to return items seized in raid

jkegley@herald-leader.comMay 8, 2013 

The Botany Bay on Winchester Road in Lexington is at the center of a case challenging Lexington police procedure as well as the state s definition of synthetic drugs. This photo was taken March 24, 2011.

PABLO ALCALA | STAFF — Lexington Herald-Leader

The fate of the pipes, bongs and rolling papers that Lexington police confiscated from The Botany Bay on Winchester Road last year appears to have finally been decided, but that's not the end of the tale.

A recent court ruling directed police to return tens of thousands of dollars in smoking paraphernalia to the store's owner, Ginny Saville.

But depending on the condition of those and other confiscated items, the "monetary loss" suffered by Saville while her stock sat in the police department's evidence locker could be the basis for a lawsuit, said David Adams, a spokesman for The Botany Bay.

"This is the beginning of justice being served, and unfortunately for the taxpayers of Lexington, it will be expensive for them to have this made right," Adams said.

Police raided The Botany Bay in July after employees allegedly sold synthetic marijuana to undercover officers. Along with 7 pounds of the mind-altering substance, police confiscated about $40,000 worth of smoking accessories, according to court documents.

However, items such as glass pipes, rolling papers and bongs are legal to sell in Kentucky. The misdemeanor drug charges against Saville have been overshadowed for nearly nine months by the store's attempts to get back its inventory — attempts that have been stymied time and again by prosecutors who said the items are evidence of a crime.

On Tuesday, Fayette Circuit Court Judge Pamela Goodwine upheld a lower court's order to return the items to Botany Bay, the latest twist in the complicated case.

But Saville expects that much of the delicate glassware will be broken, and other seized items — such as "nutritional supplements" — will be past their expiration date, Adams said. The store can't sell those items.

"A civil lawsuit will have to remedy this, I imagine, unless the police want to take the bull by the horns and make Mrs. Saville whole," Adams said.

Friends of Saville and customers of Botany Bay have criticized the police department's handling of the items as they loaded them into evidence boxes during the raid. They suspect the items got smashed and that's why police and prosecutors don't want to return them.

But police and prosecutors have repeatedly said that is not the case. First Assistant County Attorney Lee Turpin said prosecutors have fought against returning the items because the pipes, bongs and rolling papers are evidence that should be forfeited if Saville is found guilty of criminal charges.

Those items were drug paraphernalia "as far as the police and the Commonwealth were concerned," Turpin said.

However, Tucker Richardson, Saville's attorney, said the state's vague statutes regarding drug paraphernalia more clearly define "a pipe full of pot in someone's car" rather than a stock of legally sold items. He said the law doesn't patently allow for the forfeiture of items such as those seized from Saville.

Turpin said Tuesday she didn't know of any further plans by prosecutors to try and prevent the return of the items. However, Richardson and Adams said Saville had not yet been told when to retrieve them from police headquarters.

Richardson said he hoped the recent ruling had finally settled the issue so the court could focus on the pending criminal case. The defense attorney has argued in court filings that the state's law on synthetic drugs is unconstitutional.

The substance being sold at Saville's store was not specifically banned in Kentucky. Police charged Saville based on a catch-all phrase added to the law in 2012, which defines synthetic drugs as "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."

Saville's camp has said that definition is too broad.

"We've always said the constitutionality is the main thing. We just don't feel like she's guilty because the law didn't say this substance was illegal," Richardson said.

Police busted Botany Bay along with several other stores that allegedly were selling the substance last summer. They charged Saville and four of her employees with dealing the substance and possessing drug paraphernalia.

A trial is tentatively scheduled for August.

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

Lexington Herald-Leader is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service