“Even though you bought this over the counter at a gas station, you should have known it was illegal, son.”

The moral of the story from the Iowa Court of Appeals this week is "If it looks like drugs and smells like drugs, it's probably drugs…even if it's for sale on the gas station shelf." 

This week, the Iowa Court of Appeals decided State v. Heinrichs, No. 3-800/12-2174.  In that case, Heinrichs was pulled over for having expired license plates.  The stopping officer noticed the odor of marijuana coming from the car.  The officer asked the defendant if he "had anything on him."  Henrichs said he had a pipe for smoking "incense." The officer also found Henrichs in possession of a small black foil bag labeled "100% Pure Evil" that said it was "not for human consumption." Heinrichs later identified the substance as "K-2" and told the officer he bought it over the counter at a liquor store.

The officers arrested Heinrichs for possessing a controlled substance and charged him with possession of "synthetic cannabis," a serious misdemeanor under Iowa law. The State had a witness from the Department of Criminal Investigations crime lab who was prepared to testify the substance seized from Heinrichs contained the chemical "AM-2201," which is "designed to imitate the [effects] of cannabis on the brain."

The specific code section that Heinrichs was charged under is Iowa Code Section 124.401(5), which makes it illegal for a person to knowingly possess a controlled substance.  What constitutes a controlled substance when it comes to "synthetic marijuana" is defined in two separate places. 

The first, Iowa Code section 124.204(4)(u), outlaws the possession of "tetrahydrocannibinols" naturally contained in the Cannabis plant (i.e. marijuana), as well as synthetic equivalents of the substances contained in the cannabis plant. In other words, marijuana and "syntiethc marijuana." The second is Iowa Code section 124.204(4)(ai)(5). That section actually spells out some of the specific chemical compounds that the State deems to be illegal "synthetic marijuana compounds."  Some of them are:

  1. CP 47, 497 and homologues 2-[(1R, 3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol).
  2. HU-210[(6aR,10aR)-9-(hydroxym ethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobe chromen-1-ol)].
  3. HU-211(dexanabinol, (6aS,10aS )-9-(hydroxymethyl)-6,6-dimethyl-3-(2 -methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol).
  4. JWH-018 1-Pentyl-3-(1-naphthoyl)indole.
  5. JWH-073 1-Butyl-3-(1-naphthoyl)indole.
  6. JWH-200 [1-[2-(4-morpholinyl) ethyl]-1H-indol-3-yl]-1-naphthalenyl-methanone.

As you can see, they are all scientific names and compounds that a normal person would not even come close to being able to identify on the street.  

Both parties agreed that the compound AM-2201 that was found in the package that Heinrichs had was not specifically listed in that statute. So the only issue was whether a reasonable person could have known that the package Heinrichs bought was illegal to possess. Heinrichs argued that section 124.204(4)(u), which outlaws synthetic cannabis, was unconstitutionally vague because the statute does not define the criminal offense so that ordinary people could understand what substances were illegal.  Heinrichs argued that a person would need an advance degree in chemistry to understand what substances are illegal. He also argued that an ordinary person would be even more confused as to whether the package was illegal to possess because it was being sold over the counter at Waterloo retail locations.

Unfortunately for him, the Court of Appeals didn't smell what Heinrichs was smokin'.  The Court found that, even though a person may in some instances mistakenly and innocently purchase the substance over the counter, that was not the case here. The Court stated that the packaging warned the substance was "not for human consumption," yet Heinrich was using a pipe to smoke it. The Court determined that Waterloo officers were sufficiently able to distinguish between people who may have innocently possessed a "botanical potpourri" and people who were buying "incense" to smoke it to get high.

In short, the Court found that Heinrichs knew that he purchased the package in order to smoke it to get high and was not an innocent purchaser of some potpourri from Bed, Bath and Beyond.  Thus, the court found that Heinrichs should have known that the contents of the package were prohibited by the statute. 

So, the moral of the story is: if you see something on the shelf and you think it may be synthetic marijuana or another drug, don't buy it!  And of course, if you find yourself in a situation like Mr. Heinrichs, contact the attorneys at GRL Law to help you protect your rights.