On the morning of May 7, 2014, the Drug Enforcement Administration (DEA) launched Project Synergy Phase II, a national "day of raids" in 29 states, with the goal of taking down purveyors of synthetic drugs who funnel their proceeds to Middle Eastern terrorist organizations.
The Purple Zone, a smoke shop in Alpine, Texas, owned by 29-year-old Ilana Lipsen, was the target of one of these raids. This particular raid was so heavy handed and its aftermath so clumsily handled by law enforcement that it drew national attention as a symbol of police militarization and the vagaries of laws pertaining to drug "analogues." Analogues are chemicals that are not prohibited but are similar enough to controlled substances that they become illegal depending on who interprets the data.
Even worse, The Purple Zone and its owner may have been targeted because of the personal vendetta of a single prosecutor.
A Safe Little Town, Filled With Cops
Alpine, Texas has a population of a little more than 5,000 residents. It is quite literally in the middle of nowhere, more than 200 miles from El Paso, home to the nearest major airport, and 75 miles from Mexico. Because of the town's proximity to the border, it is classified as a High Intensity Drug Trafficking Area (HIDTA), which along with the relative isolation, makes it an attractive home to a great many in law enforcement, including members of federal agencies such the DEA and the Border Patrol. Sul Ross State University, the town's signature institution, hosts a law enforcement academy.
Alpine evokes the Texas libertarian ethos of a quiet, safe town where you can expect to be left alone. It's what draws both bohemian artists as well as culturally conservative folks. How one feels about Ilana Lipsen and The Purple Zone represents the schism between the two camps.
"You either love me or you hate me," says Lipsen. "I've received anti-Semitic hate emails. I've been told to 'go back to Jew York.' I've had people come in my store and tell me it was 'fucked up" and that I was poisoning the youth of the town—even though I have a big sign that says '18 and Over' and I have an ID scanner. The bars here in Alpine don't have ID scanners, but I do!"
Originally from Houston, Lipsen arrived in Alpine in 2003, when she enrolled at Sul Ross University to pursue her interest in Arabian horses by studying equine science. Though she would leave school before graduating, she still loved the wide-open spaces of Alpine and decided to make it her home, purchasing a ranch for her horses and going into business for herself.
After antique furniture and pet supplies failed to keep her balance sheet in the black, she wracked her brain thinking about what was missing from the marketplace of this West Texas railroad town. The answer she came up with was sex toys and smoking accessories. And it worked. She called her store The Purple Zone, which thrives to this day thanks to a loyal, mostly college-aged consumer base interested in hookahs, vaporizing, and e-cigarettes.
Raids and Chemical Analogues
In March 2012, "10-12 men came in, SWAT team style" to the Purple Zone, Lipsen recalls. They told her she was not under arrest, but cuffed her and threw her in the back of a police van while they searched her store, seized personal property including computers, a cell phone, and hard drives. They also took numerous packets of what Lipsen sells as potpourri in the incense section of the store, adorned with the colorful brand names such as "Dr. Feelgood," "Scooby Snax" and "Bomb! Marley."
Brewster County District Attorney Rod Ponton insists these items are "spice," or synthetic cannabinoids. But Lipsen notes, "You can buy these products online or in any gas station or smoke shop in Texas." She says that she throws out anyone who insinuates these products are used for anything other than making your house smell good.
Eight months after the 2012 raid, police returned to arrest Lipsen and her mother, Rosa (who is not an owner or an employee of the store, but frequently visits to help clean the store and tend to her daughter's many pets) on felony charges of "possession and distribution of a controlled substance."
Though the the Alpine PD and the DEA would make many undercover purchases at the Purple Zone over the next two years, lab tests turned up no controlled substances except for "MAN-2201," "XLR-11," and "UR-144," all of which were legal in Texas at the time of the raid. In fact, they would only become illegal in January 2013 when the federal government's Synthetic Drug Abuse Prevention Act, signed by President Obama in July 2012, went into effect.
The DEA insists the Controlled Substance Analogue Enforcement Act of 1986 affords them the power to prosecute possession of these substances because they are "similar to controlled substances." It is this enforcement of "analogues" that landed Lipsen with a felony indictment for products she believed to be legal.
That wasn't just her opinion. Lipsen spends thousands of dollars having all the products she sells lab-tested for controlled substances and has the documentation to prove it. Prosecutor Ponton also knows how expensive drug testing can be. In March 2014, he went before the Brewster County Board of Commissioners, pleading for thousands of dollars of funds for additional testing on the seized potpourri packets but was refused out of hand.
Out of resources but intent on proving Ilana Lipsen's criminality, he would find a willing partner in the DEA, an agency without his office's budget limitations.
The Project Synergy Phase II Raid
On the morning of Wednesday, May 7, 2014 Project Synergy Phase II came to Alpine. Led by the DEA and armed with a Brewster County search warrant (which Ponton had requested), officers from the Border Patrol, the Department of Homeland Security, the Brewster County Sheriff's Office, and the Alpine PD broke down the front door of The Purple Zone with their weapons drawn, turned all the security cameras against the wall, and tore the place to pieces.
Nicholas Branson, a geology student at Sul Ross University who rents an apartment from Lipsen in a neighboring house, returned from a trip into town to find agents searching his home. He pointed out that the two buildings had different addresses, both clearly marked. Branson told the Big Bend Courier, "When I told them this was my house, they said, 'Well, that's the price you pay for choosing to live where you live.'" When he asked to see a search warrant, he claims a rifle-bearing DEA agent replied, "What are you, a fucking lawyer?"
The agents seized all of Branson's hard drives, as well as a shotgun given to him by his grandfather. They also took what they called "suspected mushrooms," which he says is a bag of frankincense he kept with some of his geological collection. Still, as a college student, he's rightfully terrified at the prospect of a drug charge. Branson told the Big Bend Courier, "If I get indicted I lose my Pell grant, my scholarship money, my student loan money. If they charge me I will lose everything I have been working for the last five years." A warrant would eventually be issued, hours after the raid began.
After finding his home upended by body armor-clad agents of the state, Branson saw Lipsen's sister, Arielle, arguing with Leticia Carrillo, the Alpine PD's liaison with the PD. According to Ilana, Arielle told Carrillo they should be chasing cartels and human traffickers rather than harassing her sister.
Then, a large male DEA agent told Arielle to stop raising her voice and leave the premises. Arielle replied "What are you going to do, shoot me?" The agent then put her under arrest. According to Branson and the Lipsens, after being thrown, Arielle's leg flew up and inadvertently struck the agent in the shin, after which the agent pinned her to the ground with the butt of his rifle.
The DEA did not respond to our requests for comment, but Laila Rico, a representative from the DEA's El Paso office, told the Alpine Avalanche, "If you don't do what you're asked to do, that's what you're going to run into." Rico also says Arielle kicked the officer and was thrown to the ground in the process of being taken into custody.
The store was searched for several hours, by which time Tom Cochran, owner of Big Bend Screen Printing and an acquaintance of Ilana Lipsen's, came to the scene and started taking photographs.
Cochran posted his photos of the scene, as well as a rectangular-shaped injury on Arielle Lipsen's neck, to his Facebook page. The DEA called the injury on Arielle's neck "a scrape" and denied that it could have possibly come from the agent's rifle.
When it was all said and done, Arielle was indicted for assaulting a federal officer and Ilana was indicted for "receiving ammunition while under indictment," a federal charge so rarely enforced in a state with as many guns as Texas that Ilana's lawyer, a well-known Texas defense attorney, told me he had never heard of it. Lipsen says the ammunition in question was given to her by a friend, the box of which included a receipt dated after her state indictment following the 2012 raid.
As a Texas rancher, Lipsen has always owned firearms to protect her horses and other animals from predators. The cruelest irony of the ammunition indictment is that no products seized from the 2014 raid turned up any controlled substances or even analogues of controlled subtances; they were all herbs and tobacco alternatives. Had Lipsen not been under indictment for the questionable analogue charges from the 2012 raid, there would have been nothing to indict her for following the 2014 raid.
After learning that she had been swept up in a terrorist-hunting, Obama administration dragnet, Lipsen was incredulous. She speculated that her Turkish ethnic background, her affection for Arabian horses, and the fact that she buys a lot of her electronic cigarettes from China made her suspicious to the feds. Still, as a Jewish woman and self-professed supporter of Israel, she hardly fit the profile of a financial supporter of Islamist terrorism.
Lipsen suspects that the relentless harassment from law enforcement stems from an encounter dating back to when she first arrived in the town as an 18 year-old college freshman.
"I was introduced by a mutual acquaintance to a man who had Arabian horses."
The man was Rod Ponton, then an attorney in private practice.
"He had invited me to meet his horses at his house, and possibly work with them. I thought, 'Great! A job opportunity.'" She says that after sharing a bottle of wine with him, "one thing led to another and I was involved sexually with him."
Though Ponton offered to give his horses to her as a gift, Lipsen says she was "disgusted with herself" and declined to have any further involvement with Ponton or his horses after that. She claims to have seen Ponton drive slowly past her house "almost like he was stalking me."
Drawing a line from her brief fling with the man now intent on putting her in prison, a man who in a 2013 court motion referred to her "singular incorrigibility" and accused her of "poisoning the youth of the town," Lipsen says, "That was so many years ago. I didn't think that not calling someone back would get me into all this trouble."
The Optics of the Aftermath
Lipsen was set to sit in jail for months when her court-appointed attorney presented her with a most unusual bond document. As requested by U.S. Attorney Jay Miller, the federal magistrate on the case hand wrote additional conditions for her release:
"Will request Tom Cochran retract his blog on Facebook. Will provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business. Will advise newspaper A warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent or because she visited Chinese websites. Will advise media (KWest 9 news) that her sister, Arrielle Lipsen, was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents."
Faced with the prospect of spending months in jail until her trial, Lipsen signed the written retraction, which the Brewster County Sheriff's Department promptly posted to its Facebook page with the message, "Due to the incredible amount of disinformation being spread through the internet we have decided to publish this letter. We hope this answers some of the questions citizens may have regarding the DEA and all law enforcement in Brewster County."
The Border Patrol's local union followed suit, adding that its members voted to boycott Tom Cochran's screen printing business. "We hope our brothers and sisters in law enforcement in the Big Bend area will join us in our stance against this business, owned by a purveyor of misinformation, and misleading photographs," read the union's statement.
For his part, Cochran says he was visited by Ponton, who called the photos "inaccurate" and implored him to take them down, to which Cochran says he replied: "They can't be inaccurate, they're photos." Cochran thinks what law enforcement really objects to is how ridiculous it looks for a tiny smokeshop to be stormed by a paramilitary force. "They looked like thugs. That's what they didn't like."
Bryon Garrison, editor of The Big Bend Courier, described the town's reaction to the raid this way: "Shock. Why is this being done? Who would be stupid enough to have illegal drugs when they've already been raided?"
Ponton declined to be interviewed, saying he would not make any public statement about the case. An earlier press release from his office states that "assertions previously made in this matter by Ilana Lipsen or Tom Cochran are not true." He added that products previously seized from The Purple Zone "tested positive for 'Spice,' a derivative of methamphetamine." To add flourish, he offered this unverified anecdote:
"('Spice' has) caused numerous Big Bend area residents to have severe reactions, they have gone to the emergency room, one man hallucinated, stole a Ford Ranchero, then flipped it, killing himself. This illegal drug is worse than meth, similar to cocaine, meth or heroin."
Ponton was not yet finished in his efforts to control the narrative of the case. Scot Erin Briggs, then a reporter for the Alpine Avalanche, wrote an article called "Long Arm of Law Reaches into New Territory," published eight days after the raid. The article includes quotes from the DEA, Brewster County Sheriff Ronny Dodson, and information provided by Ponton. It also includes detailed research into the legality of synthetic drugs and makes clear that the Lipsens have their side of the story and law enforcement has theirs. In other words, it is serious, inquiring journalism. Ponton was not pleased with the balance.
According to Briggs, Ponton visited her at the Avalanche's office saying "I'm not here to threaten you." He added that local law enforcement did not appreciate the article and "we don't consider [the Lipsens] a credible source." He also scolded her for not grasping how bad "spice" is. Briggs offered to have Ponton write a letter to the editor, which she promised to publish. Ponton declined and told her that he had contacted the paper's owner.
Shortly thereafter, Briggs says the paper's owner told her that while her facts were sound, "her tone was all wrong." The Avalanche, like all of its affiliated papers, runs a tag line that reads "Thank a veteran, member of armed services or law enforcement every day."
A followup article published with Briggs' byline, "Women Arraigned in Drug Raid Case," presented only law enforcement's side of the story. It featured a quote from the DEA's Laila Rico boasting "It was a good day for us" and using Lipsen's "apology" letter as evidence that "DEA acted professionally at all times." Rico hoped that the letter would receive "the same attention you gave (the Lipsens') misleading statements and that of the Facebook account of Tom Cochran." The sole quote from Ilana Lipsen was taken from the letter she was forced to sign under duress in order to secure her release from jail.
Briggs says she barely had a hand in writing the followup article and asked that her byline be removed (it was not). After that, she says she had to run everything she wrote by the paper's owner and lawyer, a process so convoluted and frustrating that after three months she decided to leave her position as managing editor.
But try as he might, Ponton could not control the narrative for long. After being initially published by the Big Bend Courier, and covered extensively by Reason's Brian Doherty, actor Wil Wheaton posted Lipsen's document to his Tumblr account. The bizarre conditions of her release gained national attention, including that of Washington Post free speech blogger and constitutional lawyer, Eugene Volokh, who wrote:
"This seems to me clearly unconstitutional: It's an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity. I'm aware that, once someone is convicted, courts have considerable latitude to impose speech restrictions as a condition of parole or probation, and might even be able to impose speech compulsions. But that is after someone's guilt has been proven beyond a reasonable doubt in a criminal trial. The defendant here hasn't been convicted of anything; she continues to be presumed innocent until proven guilty.
And courts have held (quite rightly, I think) that the government has quite limited powers to restrict defendants' speech as a condition of bail. The proper purposes of bail conditions are to assure the defendant's presence at trial, to prevent the defendant from attacking witnesses or victims, and to prevent the defendant from committing further while released; any speech restrictions must therefore be tied to those purposes."
The Vagaries of Prosecuting the War on Drugs
The Purple Zone case is a microcosm for a number of things wrong with the prosecution of the war on drugs.
First, the arbitrary enforcement chemical analogues means that a person can be in possession of a product they believe to be perfectly legal, only to be charged with a felony depending on who is interpreting the chemical makeup of the substance.
As Lipsen points out, some of the packets seized by law enforcement can be found for sale in gas stations across Texas, as well as on the Internet. But in Alpine, "spice" carries a similar connotation to "bath salts," where unverified anecdotes of people doing crazy, violent things have led to unscientific pronouncements such as "worse than meth." Lipsen says, "People come into my store and ask 'Can I smoke this?' or 'Will this get me really high?' I tell them, 'You need to get out of my store.'"
Second, given how small a community Alpine is, and how well-acquainted law enforcement is with the store and its owner, there was no obvious justification for a militarized raid on The Purple Zone, to say nothing of the warrantless search of Nick Branson's apartment. With no reason to suspect an ambush or violent resistance, the agents came braced for battle and ransacked the premises until they were done.
"They came in and made this a violent situation when they didn't have to," says Tom Cochran. "That's why I took the pictures. We need to have a discussion about this. There's no need for a militarized raid on a smoke shop."
Third, when taking into account the bond conditions compelling an apology from Ilana Lispen, the Border Patrol union and Brewster County Sheriff's Office's publishing Lipsen's coerced letter (which may have been against DOJ guidelines), and Rod Ponton's strong-arming of the Alpine Avalanche's reporting, law enforcement's attempts to control the public's perception of the case can be generously described as ethically questionable.
Of her reporting on the raid, Scot Erin Briggs laments, "The job of a local paper is to get at the truth the best we can, not be the voice of those in power."
Finally, there is a problem with how easy it was for a local prosecutor to glom onto the DEA's resources. The warrant to search The Purple Zone came from the locals, yet the feds were in charge of the raid. Briggs reported speaking with a former Brewster County attorney who said it was "highly unusual for the federal government to cooperate on a warrant with the district attorney." As Briggs pointed out, "It seemed like a strange use of taxpayer funds to have a HIDTA task force as part of the raid. We have access to these funds because we are close to the border, [but] the funds were never intended to raid the local head shop."
The DEA was supposedly hunting for drug-dealing, money-laundering terrorist supporters, but instead appears to have been roped into one district attorney's personal crusade against a woman who jilted him years earlier.
Nobody Can Fight the Government Forever
In September, Lipsen pled guilty to first-degree felony manufacture, delivery, and possession of a controlled substance. The substances in question were the chemicals found in packets from the 2012 raid, which were not illegal in Texas at the time. In exchange for her plea, the charges against her mother were dropped, and all federal charges stemming from the 2014 raid against her and her sister were dismissed without prejudice.
The deal includes a deferred adjudication, meaning that the case goes away without a conviction if Lipsen stays out of trouble for 10 years. However, if she violates any of the terms of her probation, she could be subject to the "full range" of punishment, which could be anywhere from 5 years to life in prison.
Why would Lipsen plead guilty to selling controlled substances that were not, in fact, controlled substances at the time of her arrest? Perhaps to save her mother and sister from prison, perhaps to avoid prison, perhaps because her legal bills are in the tens of thousands and growing by the day. Perhaps because she just wants to move on with her life.
Lipsen is selling The Purple Zone and moving back to Houston, where she will own open another store specializing in vaping accessories. Referring to Alpine, Ilana says, "I love this town. It's beautiful. I have a lot of friends here. But it's become toxic. I never wanted to aggravate anybody. I don't do this for fun. This isn't a hobby, this is how I support myself. This is how I live."
Pointing out the polarized opinions of Lipsen and The Purple Zone among the Alpine populace, Bryon Garrison of the Big Bend Courier says, "Any freedom-loving person needs to ask, could this happen to me, if I was unpopular? That shouldn't cause a bias, as far as your freedom is concerned."
He adds, "Nobody has the ability to fight the government for too long."
Reason TV contacted the Drug Enforcement Administration's El Paso Bureau, the Alpine Police Department, the Brewster County Sheriff's Department, and the National Border Patrol Council Local 2509 for comment. In each case, calls and emails went unreturned. Management at the Alpine Avalanche offered no comment.
About 10 minutes.
Written and Produced by Anthony L. Fisher. Camera by Todd Kranin. Additional camera by Fisher. Additional graphics by Meredith Bragg.
Music: "Wet Socks" by Jahzzar (http://www.betterwithmusic.com)
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