Civil Liberties

More on the DEA's War on "Synthetic Drugs"–and One Texas Smoke Shop


The Texas Observer had a detailed and depressing feature story following up on a situation I blogged about back in May, in which a Texas "smoke shop" was raided and owner Ilana Lipsen was forced to make an (untrue, by eyewitness accounts) statement implicating her sister, Arielle Lipsen, in assaulting a federal agent in order to get bail.

Tom Cochran

The story, by Patrick Michels, tells more about the Lipsens' ongoing problems with a law enforcement apparatus seemingly intent on driving their store out of business. It starts with a well-reported human story of a woman, Ilana Lipsen, from Houston, making waves in a town, Alpine, where "many had tired of the DEA, Immigration and Customs Enforcement, Border Patrol, state troopers, city police and university cops."

Lipsen traveled to trade shows, kept up with catalogs, and began stocking her shop with new entrants to the market, like kratom, a legal stimulant with effects similar to coffee. According to records from police raids, Lipsen also sold packets of herbal "incense" sprayed with chemicals engineered to simulate pot—legal just a few years ago by virtue of complete lack of regulation, but now, depending on the chemical makeup, often just as illegal as meth or cocaine.

That may have been the beginning of her troubles. Michels reports on local teachers and parents getting peeved at Lipsen, insisting their kids were messing up their minds on her products, though she insists she cards and doesn't sell to under-18s. 

In March 2012, officers from the Alpine Police Department and the Brewster County Sheriff's Office poured into the Purple Zone. They came ready with a warrant, picked up 60 of Lipsen's products, and left. Then, for eight months, nothing happened. Lipsen wondered what the trouble had been all about until November 2012, when officers came back to raid her shop again….

This time they arrested Lipsen, along with her mother, Rosa, who'd moved to Alpine in 2007. Rosa Lipsen's name doesn't appear on any of the Purple Zone's business filings, nor do court records suggest she'd sold contraband to any informants, but she was apparently implicated by family relation. A grand jury indicted each of them on three charges of possession of illegal drugs with intent to distribute.

But is what she was selling even illegal?

Nobody knows how much of what the police took from the Purple Zone—in three visits over less than a year—was illegal to sell. Court records suggest a small fraction of what they took has been tested, probably because the testing is so expensive. Lipsen says it costs her $1,000 a test to send new products to a lab for an independent analysis to ensure she's not selling anything with illegal chemicals. In a marijuana or cocaine case, the district attorney could usually send samples to a Texas Department of Public Safety (DPS) crime lab to be analyzed for free. But as of this spring, DPS labs apparently wouldn't test for the illegal chemicals in spice. At a March 2014 meeting of the Brewster County commissioners, District Attorney Rod Ponton arrived, hat in hand, asking for $6,000 to cover testing he'd already commissioned months earlier. "My office does not have the budget to pay this bill," he told them. Commissioners denied his request.

Court records show that Ponton got 73 samples analyzed by a suburban Fort Worth lab. Thirty-one of the tests have returned results, with 14 of those testing positive for chemicals similar to those on the state's list of banned substances. The legal term is that they're "chemical analogs" to something illegal, which prosecutors say is close enough to the real thing to make distribution a first-degree felony.

All  that is not permitted is forbidden in this weird area of the law, apparently.

 In a motion from spring 2013, Ponton describes an investigator's offer to leave Lipsen alone if she'll stop selling spice [generic name for a wide variety of synthetic drugs] as an "extraordinary act of mercy." Ponton and his assistant DA express shock at Lipsen's persistence, her "singular incorrigibility," and her "shocking arrogance about the entire process" despite the officer's offer "to let criminal bygones be bygones if only she would stop poisoning our children."

But Lipsen's lawyer has made what seems like a pretty compelling argument: that the chemicals found in the Purple Zone samples were only added to Texas' banned substances list in mid-2013—well after they were seized at Lipsen's shop. To convict Lipsen, Ponton's office might have needed yet another raid on the Purple Zone, and yet more testing he evidently couldn't pay for—unless he could find some other agency to foot the bill.

Thus, the next May raid on Purple Zone in which Arielle says she was injured by an agent was part of a federal DEA-sponsored:

massive one-day operation, raiding around 200 targets across the country under what it called Project Synergy Phase II. It claimed more than 150 arrests and "hundreds of thousands of individually packaged, ready-to-sell synthetic drugs" netted in 29 states. It was a massive drugs-on-the-table operation meant partly as a public-relations stunt to show just how many illegal drugs are being sold over the counter.

As a result of that raid:

Ilana was booked for a federal weapons charge after agents found three boxes of 9 mm ammunition in the back of her shop, apparently with a receipt showing she'd bought it after her state felony indictment. If not for her local drug charges—for which she hadn't been tried, let alone convicted—her gun and ammunition would have been legal in Texas. Now, though, possessing ammunition amounted to a federal crime…..

Ilana and her mother Rosa have a trial on their 2012 state charges upcoming in September, and:

Arielle and Ilana Lipsen are set for trials on their federal charges later this fall as well. And though Ilana Lipsen isn't facing any drug charges based on the raid in May, agents collected more than 100 samples from the Purple Zone, which Rico says are still out at the lab. It's possible that even more charges could be coming Lipsen's way.

With no one sure if what they raided her for and seized are even quite illegal, Lipsen told Michels she's probably going to leave Alpine and run an e-cig shop in Houston—though leaving her shop running under someone else's day-to-day management.