One month after narcotics officers raided The Botany Bay, a smoke shop on Winchester Road, police have not filed the search warrant that led them to issue criminal charges and seize thousands of dollars worth of items.
The absence of the warrant, which typically become public record when criminal charges are filed, has fueled statements from friends and colleagues of store owner Ginny Saville that the Aug. 20 search and seizure was unjustified.
"We are concerned because we do not know on what grounds the police were there," said Kathy Gornik, a friend of Saville.
Saville was charged with trafficking in synthetic drugs and possession of drug paraphernalia after police said the store offered "synthetic cannabinoids for sale along with various glass pipes, water bongs, digital scales and other various drug paraphernalia," according to court documents.
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It was the second time Saville's Lexington store has been raided and she has been charged. She pleaded guilty last year to the same charges, according to court records, and received a $254 fine.
At an arraignment hearing on the new charges Wednesday, Saville's attorney, Tucker Richardson, entered a not-guilty plea and asked prosecutors to produce a copy of the warrant.
"I want to make sure that what they took was listed on the search warrant, and I want to know if there was probable cause," he said.
Warrants are not always filed right away, but Kentucky law says they must be filed in a reasonable amount of time, he said.
District Court Judge David Hayse ordered that the warrant must be filed by Saville's next court date, Oct. 12.
Prosecutors said Wednesday's hearing was the first time they learned the warrant had not been filed. Lee Turpin, first-assistant county attorney, said she would be "shocked" if the warrant had been lost. Prosecutors typically don't see a warrant until it is filed by an investigating officer.
The Botany Bay was one of several stores suspected of selling synthetic marijuana that were targeted by police this summer. About 25 people witnessed the raid, and several have spoken out in interviews and on The Botany Bay's Facebook page.
Among other accusations, they said police did not show a copy of the warrant during the raid and would not answer questions about why they were there. They loaded tens of thousands of dollars worth of pipes, vaporizers, scales and other items into boxes and hauled them away.
Lexington police spokeswoman Sherelle Roberts said she could not comment on Saville's case, but she said this summer's raids were the result of tips and complaints about the sale of synthetic marijuana. She said police determined the substances to be illegal through lab testing.
Saville's case could be among the first to test the constitutionality of a new state law banning entire classifications of synthetic drugs. Her attorney said the substance being sold at Botany Bay was not specifically listed in the Kentucky Revised Statutes as a "synthetic cannabinoid," an ingredient which mimics the effects of marijuana.
Instead, the store was busted based on a "catch-all phrase" included in the statute, Richardson said. The phrase bans "any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration" or sold within the guidelines of federal laws.
Richardson said the addition is unconstitutional because retailers can't always know if a substance they're selling qualifies. He said The Botany Bay independently had the substance tested in a laboratory and deemed it legal.
"Give us a list," he said. "The law has to tell you what you're selling is illegal."