High incident

Part 2

Kristen Lombardi

Stung by a raid

It was late last year when neighborhood concerns burgeoned, prompting Captain Keith Benway and vice squad officers to investigate the city's tobacco shops. In roughly three months, says Benway, officers visited at least 10 stores. Several undercover cops were sent into stores to purchase clay and marble pipes with shallow bowls as evidence for acquiring a search warrant.

Vice squad targeted the stores in question because they showcased water filtration pipes or glass, stone, and metal pipes. Several of the stores sold roach clips or rolling papers. In several cases, pipes were displayed in close proximity to posters, fanny pouches, and T-shirts emblazoning a marijuana plant, says Benway.

"There are misconceptions about these [tobacco] shops," he says. "We didn't see tobacco products. We saw all these [items] conducive to the use of drugs."

Police eventually convinced a clerk magistrate to issue warrants. Roughly 28 officers raided three of the four shops on January 7. (The Social Smoker was closed for business on that day.) Benway's description of the raids paints officers as amiable repossessors -- sensitive to the shock they would surely inflict, but in the end, bent on confiscating much of the owners' inventories.

"It was traumatic for people involved because they couldn't understand their violation of the law," says Benway, who oversaw the raid of one shop. "Police [officers] were not overbearing. We packaged everything carefully in boxes and left."

Not surprisingly, Petrie of Ziggy's Tobacco and Novelty views the incident in a different hue. Petrie takes offense to the phrase "head shop," saying he'd never intended to open a store catering to the drug scene. He first opened a Main Street market in 1993 that specialized in Jamaican imports. He sold banners, wood carvings, tapestries. A year later, he started selling pipes at the request of customers -- mostly Clark University students and Jamaicans.

He applied for a tobacco license. He sold rolling papers, loose tobacco, cigars, and clove cigarettes. He subscribed to pipe catalogues, first ordering wood pipes and then metal, clay, stone, and miniature water filtration pipes.

"I wanted to carry all kinds of pipes. They were generating cash," he says.

As with most born after the dawning of Aquarius, the 32-year-old Petrie knows people may view pipes as drug paraphernalia. He posted a sign above his tobacco counter bearing the words: "Contemporary Tobacco Pipes. No other use intended or implied." Petrie says he wanted to assure people he wasn't condoning drugs.

Of course, the sign didn't deter police from raiding the store. That fateful day, Petrie says, five cruisers descended upon his shop. Officers flashed a warrant, then rummaged through merchandise. In the end, says Petrie, police confiscated about 24 stone pipes, 24 metal pipes, three miniature water pipes, and 60 T-shirts depicting the Jamaican reggae legend, Bob Marley.

"It is not against the law to sell T-shirts with pot plants on them," says Petrie.

He estimates that police took roughly $400 worth of merchandise from his store alone. At Pipe Dreams, police reportedly confiscated more than $30,000 in pipes and bongs, says one storeowner who declined to be quoted.

Apparently, Brendan Keenan of the Central District Court agrees. This assistant clerk conducted the hearing in which Alice Perry of District Attorney John Conte's office attempted to acquire a criminal complaint against the owners. To try the owners for possession of drug paraphernalia with intent to sell, Perry had to show probable cause for suspecting the owners' guilt -- typically a simple task, say law experts.

Keenan, however, didn't issue a complaint because of insufficient evidence.

"It isn't a very tough thing to show probable cause," says Dave Rossman, a Boston University law professor. "There has to be some reason for magistrates not to issue complaints. It suggests [the prosecution] doesn't have an overwhelming case."

Perry appealed Keenan's decision and then sought a criminal indictment before a grand jury in May. As with a complaint, Perry had to show probable cause to the grand jury. The difference, say law experts, is that prosecutors are the only ones with access to a grand jury, thereby having far more control over a case.

"The prosecution bypassed a [District Court] judge," says Mike Cutler, a Boston attorney specializing in criminal defense and drug policy. "It appears the prosecution didn't want to take the risk of presenting evidence and getting the same decision. The prosecution's case seems to be incredibly weak."

Assistant District Attorney Alice Perry was on vacation and could not be reached for comment.

Part 3

Kristen Lombardi can be reached at klombardi[a]phx.com.