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Suit Advances for Synthetic Marijuana Arrest

The owner of Custom Blends Tobacco Store in Hanover County can try his civil rights claim against an investigator for the local sheriff’s office who obtained arrest warrants, without probable cause, to charge the owner with conspiracy and distribution of synthetic cannabinoids in violation of Va. Code § 18.2-248.1:1(C); the Richmond U.S. District Court denies the investigator’s summary judgment motion asserting a qualified immunity defense.

In 2011, the Virginia General Assembly enacted a ban on possession and distribution of synthetic cannabinoids. Under the ban, a substance qualified as a “synthetic cannabinoid” if it 1) contained “any detectable amount” of one of more of the 10 compounds listed under Code § 18.2-248.1:1(A); or 2) it is a substance otherwise captured under § 18.2-248.1:1(F). Section (F) criminalizes substances that are created (under certain conditions) to produce the same effects as known/listed synthetic cannabinoids, but that are not identified under Section (A), and so would otherwise be legal.

Because none of the products sold at Custom Blends tested positive for any Section (A) substances, the charges against plaintiff hinged on classifying the purchased herbal incense products as synthetic cannabinoids pursuant to Section (F). The Hanover County General District Court dismissed the charges against plaintiff at the preliminary hearing stage. Plaintiff then filed this complaint alleging defendant Christopher Stem, investigator for the Hanover County Sheriff’s Office, violated 42 U.S.C. § 1983 based on his arrest in violation of the Fourth and 14th Amendment.

The court concludes there is no reasonable reading of Section (F) that would have allowed Stem, or any reasonable law enforcement officer, to think, based on the information known to him, that he had probable cause to believe that all the requirements of Section (F) had been met, such that plaintiff had committed the offense for which he was arrested. Here, Stem concluded that he had probable cause to obtain plaintiff’s arrest warrant largely based on 1) DFS’s laboratory results of his earlier purchase of Bayou Blaster, which showed this product contained a detectable amount of l-(5 Fluoropentyl)-3-(1-naphthoyl)indole (AM 2201); and his and Investigator B’s knowledge based on their training and experience that AM 2201 was not at the time “listed” under Section (A), the only reason this substance would be in Bayou Blaster was “to emulate or stimulate the effects of synthetic cannabinoids.” This information, however, fails to establish probable cause to believe that Bayou Blaster was a synthetic cannabinoid under Section (F).

Stem lacked any information as to who had “privately compounded” the AM2201 or when this occurred. Stem knew, or had available, the name of Custom Blends’ distributor, but there is nothing in the record that suggests any investigation whether it, one of its own suppliers, or someone even earlier in the commercial distribution chain, had privately compounded the AM 2201 found in Bayou Blaster and/or made chemical changes to the product.

Stem also lacked any particularized information concerning the other requirements of Section (F), including, most glaringly, the mens rea, or specific intent, of the person who compounded the AM 2201 found in Bayou Blaster. There is nothing in the record that establishes or suggests what Stem knew about how Bayou Blaster was marketed or the extent to which it was, in fact, used by consumers as herbal incense, to be burned as an aromatic, rather than smoked as a marijuana substitute.

Based on this record, it would appear that Stem and others simply assumed that any product with a compound capable of mimicking marijuana had to have been compounded “with the intent to circumvent the criminal penalties for synthetic cannabinoids.” The specific intent requirement in Section (F) prevents law enforcement from doing precisely what it did in this case: prosecute someone solely because an otherwise legal product, with legitimate uses other than as a marijuana substitute, could be used by a consumer to mimic the effects of a synthetic cannabinoid, or that such a product could be “confused” with a banned substance.

Where, as here, the officer’s determination of probable cause was based on a “patently deficient” legal understanding of what conduct is prohibited under the applicable statute, the approval of his supervisors and the commonwealth attorney does not – as a matter of law – overcome the unreasonableness of the criminal charge and its lack of probable cause.

When the asserted facts are viewed most favorably to plaintiff, a jury could reasonably conclude that Stem did in fact omit from his affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading. Stem told the magistrate he had, in fact, purchased Spice, which he defined as a synthetic cannabinoid, when, in fact, he did not have the information necessary to reasonably believe that what he had purchased was an illegal synthetic cannabinoid, as then defined under Virginia law.

Stem is not entitled to summary judgment on his defense of qualified immunity.

Rogers v. Stem (Trenga) No. 1:12cv976, July 2, 2013; USDC at Alexandria, Va. VLW 013-3-332, 22 pp.

VLW 013-3-332

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