DOVER — Smoke Signals, the downtown smoke shop, has taken its fight for the return of merchandise police seized in a raid to the state Supreme Court, starting a process that could change the interpretation of the state's drug paraphernalia law.
The court accepted an appeal filed by Smoke Signals' attorney, which challenges a judge's decision to deny the store's request to have 177 pipes and other smoking devices returned.
Attorney Jonathan Cohen, of Twomey and Sisti Law Offices in Chichester, said the drug paraphernalia statute cited by the judge in his decision is "unconstitutionally vague" and violated his client's right to due process under state and federal law.
Strafford County Deputy Attorney Tom Velardi said he's not surprised by the appeal.
"The Supreme Court is the final arbitrator of what statutes mean, so it's perfectly natural the defendant would seek a ruling from the Supreme Court," Velardi said.
Police seized the merchandise during a March 5, 2004, raid at the Main Street store. Strafford County Superior Court Judge Bruce Mohl found Smoke Signals not guilty on the five misdemeanor charges almost a year later because most of the items police confiscated were found to be the same as those prosecutors returned after a previous case involving the store.
The defense argued, and a judge agreed, that the state based its case on items seized by Dover police in their first raid on Oct. 19, 2001. That raid ultimately led to similar charges.
That initial case ended in a plea bargain on Jan. 26, 2004, after prosecutors and defense attorneys worked out an agreement detailing which items the store couldn't sell. Items not included in the agreement were returned that day to the store's owner, Kelly Hargrove, and her daughter, Susan Hargrove, the store's manager.
Police raided the store again less than two months later, seizing the items the store now wants returned.
Cohen also is challenging Mohl's decision not to dismiss the charges in the second case before it began.
According to RSA 318:B-a, state law defines drug paraphernalia as objects which are "used or intended for use or customarily intended for use in ... ingesting, inhaling, or otherwise introducing, marijuana, cocaine or hashish into the human body."
In 1981, the state Supreme Court ruled the phrase "used or intended for use" was constitutional. The Legislature added the phrase, "customarily intended for use" eight years later.
Cohen is arguing that the phrase, "customarily intended for use," is so vague that "people of common intelligence must necessarily guess at its meaning and differ as to its application."
Mohl had written in a decision that the statute gives "more guidance than the defendant claims it does."