On Wednesday, July25 at approximately 11:10 am, North American Herbal Incense Trade Association (“NAHITA”) representatives were contacted by the Store Owner of “Can You Dig It” adult novelty shop in Salem, New Hampshire, who informed NAHITA Advocates that Drug Enforcement Agency (“DEA”) Agents had entered the premises to execute a search warrant. NAHITA representatives were dispatched to offer assistance to the store owner, collect facts, and witness / document the DEA’s Activities.
NAHITA representatives arrived on the scene at approximately 12:45 pm to find the visibly upset store owner outside her taped off establishment with an employee and her legal representatives.
The store owner told NAHITA representatives that both she and her legal representative were denied entrance into her establishment to witness the execution of the DEA search warrant.
The Store owner’s legal representative showed the search warrant (signed on July 24, 2012 by Magistrate Judge Daniel J. Lynch) to NAHITA representatives to assist in documenting the occurrence. The search warrant’s validity immediately came into question, as it displayed a blank date of execution. The search warrant was purported to aid in the probable cause investigation of violations to the following federal statutes:
United States Code ("USC") : Title 21 - FOOD AND DRUGS
21 USC § 841 - Prohibited acts A
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;
21 USC § 813 - Treatment of controlled substance analogues
A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.
21 USC § 863 - Drug paraphernalia
In general, it is unlawful for any person—
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
(3) to import or export drug paraphernalia.
(d) “Drug paraphernalia” defined
The term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana,  cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—
(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2) water pipes;
(3) carburetion tubes and devices;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.
At approximately 12:50 pm, NAHITA representatives interviewed Can You Dig It’s store owner, who provided a recount of events. As she was participating in a class to maintain her state tobacco merchant licensing, she was interrupted by a message from one of her employees informing her that the DEA had entered and shut down her establishment to conduct a search warrant. As she arrived on scene approximately 45 minutes later, she found that her store indeed was marked off with police tape, and that DEA agents were conducting search and seizure activities. The store owner was further informed by employees that they were asked to leave the premise upon the DEA’s arrival, and had no idea what was going on.
After asking onsite law enforcement officers about what was happening, she was greeted by DEA agent in charge, Special Agent Todd F. Prough, who works with the New England Field Division of the U.S. Department of Justice Drug Enforcement Administration. Agent Prough produced a search warrant and instructed the store owner to turn her store’s video surveillance devices off, or they would “be ripped off the wall”. Additionally, the store owner and their legal representatives were denied entrance to her property by the DEA while the search was being conducted, despite all probability that police could not have reasonably feared that the store owner, if unrestricted, could destroy “evidence”.
At approximately 1:00 pm, NAHITA reps asked Salem NH Police Officer G. Pepper what the probable cause was for the search. He stated that he didn’t know. NAHITA Reps then asked if they could speak to the Agent in Charge (Special Agent Todd F. Prough). Officer Pepper said that he would ask. Upon returning two minutes later, Officer Pepper said that the Agent in Charge said that he would be out in a minute to speak with us. After additional inquiries and almost one hour passing, NAHITA reps left the scene with no explanation of probable cause explanation to offer the distraught store owner.
As a long term local establishment, Can You Dig It adult novelty shop is known as being a responsible, well-run, and established business that voluntarily restricts all product sales to adults 18+ with ID checks. The store “Can You Dig It” has a reputation for being an informed, law abiding, and tax-paying business with above average community relations. To promote responsible sales and clear any ambiguity, the store has always posted many signs around the premises informing patrons that the products they sell are For Tobacco Use Only and are Not Intended for Human Consumption. Can You Dig It has never had a history of stocking or selling so-called “Bath Salts” or illicit products of any kind. The store’s policy is to refuse sales or service to anyone seeking products related to illicit substances.
Aside from stating these ambiguous violations based on the “Intention” of sale, the produced search warrant failed to demonstrate why the DEA has a reasonable belief that the Can You dig It store owner had committed a crime (“probable cause”), for this one merchant is amongst several hundred other stores selling the same materials in the same manner across the state. To further illustrate the ambiguity of the DEA’s justification for its actions, another such store, located within 100 yards of “Can You Dig”, remained uninterrupted by the DEA throughout the occurrence, although it employed the same business model.
Later in the same evening, NAHITA reps were contacted by the store owner. She said that when the search was over, she asked for an inventory sheet of her confiscated property. The DEA Agent that she spoke to handed her a paper and said “This is what you get”. When the store owner attempted to ask questions about what took place and why, the same DEA Agent said that “You are in enough trouble already. We don’t have time for this”
Upon initial visual inspection, the store owner found that the federal agents seized from the store various items alleged to be controlled substances or drug paraphernalia (including traditional hookas), but left behind items such as rolling papers and tobacco products. The federal agents also took the store owner’s video servers, removed all posted signs from premises pertaining to sales of products “for tobacco use only”, “18+ only with ID”, and “products not intended for human consumption”.
To NAHITA reps knowledge, the DEA did not find any substances that pertain to criminal acts. Given these circumstances, it is NAHITA’s opinion that the scope of federal acts 21 USC § 813, 21 USC § 841 and 21 USC § 863 are unduly vague because they allow a retailer to be convicted without proof of any culpable state of mind. Because this police activity was conducted from start to finish without demonstrating a basis for “reasonable suspicions” or probable cause warranting police search and seizure activities, the nature of the intrusion should be constituted as unjustified harassment.
In response, NAHITA reps have contacted the media to offer insight to this unconstituted occurrence, and will begin exploring relations with organizations such as Flex Your Rights (www.flexyourrights.org), to enhance our educational resources on due process. NAHITA will also renew efforts on posting best practices for retailers and merchants.