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Head-shop Case Goes To Wyoming’s High Court
03-26-2007, 10:53 PM,
Head-shop Case Goes To Wyoming’s High Court

Quote:By The Associated Press

GILLETTE, Wyo. — Jeff Doles says customers weren’t supposed to smoke marijuana or any other illegal drug from the neon-colored water pipes he once sold from his shop.

But a 24-inch bright-red bong to smoke tobacco? Yeah right, police said, and they seized nearly 3,000 pipes, bongs and other items in three raids on his Gillette strip-mall store, Hip Hop Hippies.

Wyoming has few head shops. But there is plenty of talk here about property rights, and to that end, Doles’ case is unusual: Only after a jury acquitted Doles on drug-paraphernalia charges did prosecutors seek — and win from a different judge — permission to keep his merchandise.

It might be the first case of its kind for the Wyoming Supreme Court.

“There’s a long history of libertarian thought out here in the West and in Wyoming,” Doles’ attorney, Nick Carter, said. “I think we’re getting away from that.”

Opinions are mixed on whether civil forfeiture nationwide has increased or decreased in the nearly seven years since the federal CivilAsset Forfeiture Reform Act was signed into law.

Civil forfeiture attorney Brenda Grantland, board president of Forfeiture Endangered American Rights, said she is seeing a resurgence in civil forfeiture.

“It’s horrible,” Grantland, of Mill Valley, Calif., said. “The Supreme Court ruled that forfeiture isn’t punishment. They don’t have me convinced.”

But Seattle attorney Rick Troberman said he has seen dramatically fewer civil forfeiture cases since CAFRA, which sought to rein in a proliferation of forfeiture abuses.

Under civil forfeiture, it was Doles’ property that was found guilty, not Doles. That means he doesn’t have to take things personally. But try telling him that.

“What’s the point of it?” he said. “A jury has already spoken on it.”

He said prosecutors filed for civil forfeiture because his acquittal peeved them.

“It was a personal slap in the face to them, and they can’t stand it. They hate it,” Doles said. “But the jury spoke. It’s not my fault they didn’t speak on their behalf.”

But Campbell County prosecutor Bill Eichelberger wants drug paraphernalia off the street.

“We were finding items in the hands of people using marijuana who advised us they had bought them at Mr. Doles’ shop,” he said.

And Eichelberger said he has a century of case law backing him up.

Civil forfeiture helps police shut down criminal operations by allowing law enforcement to seize property with a lower standard of proof. In criminal cases, guilt must be proven beyond a reasonable doubt. In civil forfeiture, property need only be more likely than not involved in crime.

A jury found Doles not guilty of one count of conspiracy to deliver of drug paraphernalia and two counts of possession with intent to deliver drug paraphernalia.

Afterward, Gillette Police Chief Rich Adriaens was unmoved: “Just because six people found someone not guilty doesn’t mean the crime didn’t occur,” he said.

Prosecutors filed for civil forfeiture after the verdict so that police could keep 330 items seized during two raids on Hip Hop Hippies. District Court Judge Michael Deegan upheld the forfeiture Sept. 21, and that very day, police raided Hip Hop Hippies for a third time, seizing 2,500 more items.

Doles has appealed to the Wyoming Supreme Court.

Carter said prosecutors didn’t get the result they wanted with the jury, so they used civil forfeiture to go before another judge.

“What’s concerning about that is the state of Wyoming, or the government in general, can just kind of forum shop until they get the result that they want,” Carter said.

Carter argues that Doles acknowledged that he owned and sold the pipes. He says the only issue for the jury, then, was whether the pipes were paraphernalia. Since the jury acquitted Doles, Carter reasons, the jury must have decided that the pipes weren’t paraphernalia.

But Eichelberger said the jury wasn’t asked to decide whether the pipes were paraphernalia. From his point of view, it was reasonable to have a judge answer that question.

“Let’s turn the coin over,” he said. “Had we gained a conviction of Mr. Doles on the three misdemeanor counts, it is my understanding under the drug-control act that we still would have had to do the civil forfeiture.”

Linda Burt, executive director for the American Civil Liberties Union in Wyoming, said she would follow Doles’ case.

“We’re a state that’s a very libertarian state,” she said. “And we have very staunch support for those parts of the Constitution involving individual liberty and property.”

Doles, 35, is no stranger to the legal system.

The more recent part of his rap sheet includes a 1998 guilty plea for dealing methamphetamine. Court documents say he fled while awaiting sentencing; Doles said a paperwork error enabled him to post bond from the Natrona County jail — essentially escaping jail while he was in a wheelchair — and hide out in Mexico for two years.

He said the authorities caught up with him, guns drawn on his doorstep.

He could have done any number of things after getting out of prison two years ago. But he figured there was good money to be made selling funky-looking pipes in Gillette, a city bulging at the seams from a coal-bed methane boom.

The money wasn’t bad. He estimates he sold $110,000 worth of pipes in eight months. He also didn’t deny wanting to taunt the police and prosecutors whom he’d gotten to know so well.

“They think they’re some sort of commandos or something,” he said. “People in Gillette don’t like the police. They don’t. They try to manipulate you. They try to bulldog you.”

Asked if Doles’ opening a head shop grated him, Eichelberger wouldn’t say.

“I admire Mr. Doles’ energy,” he said. “I wish it had been turned in other directions.”

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