Marijuana Policy Project

At 7th Heaven in Kansas City, you can purchase bongs, music and futons.

In Cass County, it's OK to sell futons and T-shirts. But bongs?

That could land you in jail.

Cass County Prosecutor Chris Koster goes to court today, hoping to convince a judge that the owners of Bizarre Boutique should be tried for selling drug paraphernalia.

Michelle and Kevin Van Trump, the owners of the Belton store, each were charged with two felony counts in May.

According to court documents, the Van Trumps sold to an undercover officer a glass bong, a plastic bong, a pack of cigarette papers, a wooden grinder, a one-hit pipe, a dozen pipe screens and five tickets to a rock concert.

The store owners said they had no idea there was a problem.

"I'm astounded at the whole thing," Kevin Van Trump said. "I'm not here to fight against the law. Just make me aware."

Law enforcement officials in Kansas and Missouri agree that it is legal to own items such as bongs, hookahs and water pipes. In some Mideast cultures, hookahs traditionally are used to smoke tobacco.

But under a Missouri statute, the items become illegal if an individual knows or "reasonably should know" that they will be used for drugs.

"I believe…it is difficult to have a head shop that is not illegal," Koster said. "It is nearly inconceivable to me that one would sell a 2-foot-high bong and not know that it could be used for drugs."

Then how can hookahs, water pipes and one-hit pipes be sold in other Missouri counties? Stores in Kansas City, Columbia and St. Louis all sell those items without prosecution.

Jackson County Prosecutor Michael Sanders said the law was unusual because the state must prove two elements—drug paraphernalia possession and the intent of the customer.

"These are tricky cases to prosecute," Sanders said. "The mere potential that the item could be used (for drugs) isn't enough to meet the definition. We have to establish beyond a reasonable doubt that an item purchased will be used."

Criminal defense lawyer Patrick Peters said the Missouri law was so broadly written that many common items—such as syringes, rolling papers and silver spoons—could be construed as drug paraphernalia.

Criminal law, Peters said, should be black and white.

"Is it the store owner's responsibility to find out what the customer is going to do with it?" Peters asked.

"What you want to prevent is facilitating the illegal use of drugs. But how far up the ladder do you go? Why don't manufacturers of bongs get charged?"

Court challenges

In the 1970s, communities nationwide passed drug paraphernalia laws, but they were so vaguely worded that they were deemed unconstitutional.

The Drug Enforcement Administration in 1979 stepped in and sketched a model drug paraphernalia law that could withstand constitutional challenges. Nearly all states adopted a version of it.

In 1981, the Johnson County district attorney successfully prosecuted The Choosey Beggar, a head shop. The store owners appealed, and the Kansas Supreme Court upheld the verdict two years later.

In The Choosey Beggar case, detectives seized items such as pipes, "cocaine kits" and roach clips. An expert witness testified that the pipes had bowls so small that if they could hold tobacco at all, it would burn only 45 seconds to one minute.

Many of the seized items had stickers stating they were for legal use only.

In its ruling, the Kansas Supreme Court said some items were so uniquely fashioned that a person could assume that they were designed for drugs. Additionally, the court said kits that combined mirrors, razor blades and spoons could be presumed to be used for drugs.

District Attorney Paul Morrison said the judge who oversaw the case summarized it best.

"It's like selling firecrackers and marking on the package, "Not designed to explode,"' Morrison said. "You can't disclaim responsibility away."

Although Kansas law allows stores to sell bongs and hookahs, Morrison said Kansas store owners need to be careful about their inventory.

"If you let places openly sell equipment that is for illegal drug use," Morrison said, "you're making a statement by doing that."

Tobacco use only'

Connie Hubbard is the president of Main Street Merchants Association in Belton. Hubbard said many business owners were relieved when the police raided Bizarre Boutique.

"The day they got arrested, not one merchant was unhappy," Hubbard said. "They told police: Thank you for cleaning up our neighborhood. What took you so long?"'

Hubbard said the store attracted a drug crowd, creating an unsavory atmosphere. She figures no one would need a water pipe except for using dope.

But Kevin Van Trump said he thought he was conducting business on the up and up.

"We never had any complaints—verbal or written," he said. "Everywhere there were signs that it was for tobacco use only."

Allan Gallas, an attorney for 7th Heaven, said that store's policy was clear cut:

"If a person makes it known that they are intending to purchase any product for an illegal purpose, the purchase will be denied."

Enforcing the law

Many prosecutors agree that drug paraphernalia laws are well-intentioned.

Jackson County prosecutor Sanders said the office in the mid-1990s successfully prosecuted businesses for selling items that could be used for manufacturing methamphetamine. In those cases, the retailer gave the customer specific instructions on cooking methamphetamine.

But Sanders said the Missouri law, if taken to an extreme, could have a far-reaching effect. For example, it could snare public health advocates who give free syringes to drug addicts in an effort to prevent blood-borne diseases.

In Columbia, where attitudes about marijuana are more liberal, Boone County Prosecutor Kevin Crane said he had never charged a retailer under the statute. But he didn't rule out the possibility.

Bongs can be collector items, said Jeannette Graviss, chief warrant officer for St. Louis. She said the office had never filed charges against a retailer.

Koster said a judge or jury would determine whether his interpretation was correct.

"Our goal is to keep…an aggressive stance against the narcotics community…at every level from the manufacturers to the street-level users," Koster said.

Meanwhile, the Van Trumps complain that they got a bum rap. They face felony charges, their faces have flashed across TV, and their reputations have been sullied.

"I coach little-league games," Kevin Van Trump said. "It (the media) portrayed me as a crazy person."

© 2003 The Kansas City Star

Newshawked-by: chip

Posted-by: Larry Stevens