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Published August 11, 2011, 03:13 PM

Fake Pot Has Cops' 'Wheels Spinning'

A lawyer for a store owner accused of selling synthetic marijuana said on Wednesday the charges “smack of politics” because they were filed the day after the City Council delayed consideration of a city law banning the sale of drug paraphernalia.

By: Dave Roepke, Forum Communications

MOORHEAD – A lawyer for a store owner accused of selling synthetic marijuana said on Wednesday the charges “smack of politics” because they were filed the day after the City Council delayed consideration of a city law banning the sale of drug paraphernalia.

Police Chief David Ebinger, as well as the prosecutor who filed the charges, said the timing was a coincidence, not retribution.

Ebinger also said, given a second smoke-shop owner is now facing allegations of selling synthetic pot under the state law that became effective July 1, he’s not sure the ban carries severe enough penalties to be an adequate deterrent. It’s a misdemeanor to possess a substance banned under the new law and a gross misdemeanor to sell one.

“If it isn’t (a disincentive) I guess we’ll have to keep spinning our wheels and wasting our time,” he said.

Charges filed Tuesday in Clay County District Court allege a one-gram baggie of “Raw Earth Herbal Smoke Blend” bought by undercover police officers July 12 at Mellow Mood, 409 Main Ave., tested positive at the state crime laboratory for JWH-081, a chemical the ban specifically outlaws.

In the complaint, police quote an unnamed Mellow Mood employee saying he hadn’t tried “Raw Earth” but most of his co-workers had. The store employee, police say, said it “tends to be too much for people” and suggested “taking it slow” before adding that “no one ever does that.”

The charges against Mellow Mood’s owner, 29-year-old Andrew James Leikas of Portland, Ore., claim by selling “Raw Earth,” Leikas possessed and sold a synthetic cannabinoid.

Blair Nelson, an attorney from Bemidji, said Leikas had lab testing from the company he bought the product from that claimed it was cannabinoid-free.

“He didn’t knowingly break the law,” Nelson said. “Mellow Mood has not planned and does not want to deal in illegal chemicals.”

Nelson said he was under the impression prosecutors would wait until the sample bought at Mellow Mood July 12 was tested at an independent lab at the defense’s request and expense before filing charges.

“It’s kind of a surprise he’s been charged,” he said.

Nelson questioned if the timing of filing a complaint was tied to a 5-4 decision by council members Monday night – a tie vote among the eight council members that was broken by Mayor Mark Voxland in favor of a three-month delay.

Assistant Clay County Attorney Matthew Greenley said authorities don’t object to independent tests. But even if that testing did not find JWH-081, he said it wouldn’t alter his confidence in the analysis done by the Minnesota Bureau of Criminal Apprehension.

“There’s probable cause to go forward,” he said.

Greenley said he actually elected against filing paraphernalia charges under a state law – though he said a case could be made that Mellow Mood was selling items covered by it – due to City Council deliberations about a local ordinance to regulate sales of items that can be used to smoke illicit drugs such as marijuana.

The owner of Pyromaniacs, another smoke shop in downtown Moorhead, has also been accused of running afoul of the synthetic pot ban and is facing the same charges as Leikas.

Ebinger said police, after notifying all five Moorhead smoke shops that had been selling the herbal products about the new law July 1, are actively monitoring the businesses, but he declined to say if any other samples have been sent off for tests. He said police won’t seek any charges under the ban without a BCA analysis to support the allegations.

Though Ebinger said he understands that sales of the “herbal” products draw high profits, the uncertain origins of the substances concern him and he’d like stores to stop selling them.

“This stuff’s nasty,” he said.

Roepke is a reporter at the Forum in Fargo

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