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photo by: Paul Whyte

It has been a wild ride for Jim Carlson and anyone who has worked at Last Place On Earth (LPOE) in the past few years. Tensions between the head shop located in the middle of old downtown Duluth and neighboring businesses, passersby and law enforcement have grown to a breaking point. The effects of the synthetic products and the crowds of customers who show up to purchase them from when the store opens to when it closes has proven to be an area of concern in the community and City officials have vowed to put a stop to it.

On Friday, March 29, at 2:20 pm, the Reader received a tip that law enforcement would be conducting a third raid on the Last Place on Earth. At 2:25 pm, it was business as usual at the shop. A long line of customers were wrapped around the store’s interior and two officers were at their posts by the store. Officers have been watching the block during LPOE’s operating hours at a cost to store owner Jim Carlson ever since the last raid in December. At 2:30 pm, a group of approximately 20 officers, both uniformed and in plain clothes came across Superior St. and entered the store. At the same time around half a dozen squad cars rolled up and a perimeter was set up around the entrance. Most of the customers were allowed to leave, while several were detained. “They’re still selling illegal drugs,” said Duluth Police Chief Gordon Ramsay at the scene. According to Ramsay BCA (Bureau of Criminal Apprehension) scientists have deemed that the chemicals in Carlson’s bath

salts products are illegal. The Lake Superior Violent Crime & Drug Task Force in conjunction with the Duluth Police Deptartment arrested Carlson and his son, Joseph Gellerman, at the scene at 3 p.m. “The Nazis got me again,” stated Carlson.

The recent raid is just one more chapter in this ongoing issue that has caught national attention, yet it seems that LPOE has become ground zero in the area where the sale of synthetic is concerned.


Timeline

Here is a breakdown the action over the past three years.
Federal DEA banned herbal-incense related chemicals December 24, 2010. Incense chemicals JWH-018, JWH-073, JWH-200, CP-47, 497 and cannabicyclohexanol became effectively illegal to use in herbal incense products nationwide.

The Minnesota Incense Chemical Ban went into effect on July 1, during the 2011 Minnesota Legislative session. Lawmakers passed a bill banning possession and sale of synthetic marijuana. Two weeks after the ban went into effect, Moorhead Police officers raided Pyromaniacs Smoke Shop in Moorhead Minnesota. 2,000 individual bags of incense were seized, along with financial records and cash.

The first raid at LPOE occurred on September 21, 2011. It all started
when an undercover Duluth police officer entered the store on Wednesday, September 21 and bought a bag of incense. Shortly after police arrived with a search warrant. A dozen or so officers entered Last Place On Earth and spent the day boxing up his products, his money, his computers, cell phone and (legal) weapons. Carlson assured the Associated Press that day that he was not selling anything that was illegal. He had to stop selling “bath salts” the week before because of an ongoing Federal crackdown.
On July 9, 2012, President Obama signed legislation that banned synthetic drugs. The law was to outlaw sales of synthetic drugs by both retail stores and online retailers.

LPOE was raided by law enforcement a second time on July 25, 2012. This time the DEA, US Marshals and the Duluth Police showed up in a DTA bus with a search warrant and about 20 officers in full body armor and guns drawn. Carlson was out of town fishing in Alaska at the time. 2.8 million was siezed from his back accounts, records and more guns were taken. Carlson was charged with violating federal drug and product labeling laws.

On August 10, 2012, Carlson was issued a notice of public notice stemming from numerous complaints about the sale of synthetic products and the people that hang out on the block.

December 11, 2012. Carlson attempted to collect damages from the 2011 raid. Duluth District Court Judge Shaun Floerke dismissed all complaints brought by Carlson’s lawyer, Randall Tigue. All his cash, guns, cars and products that were seized remain as evidence in the ongoing investigation
December 21, 2012, Jim Carlson, his girlfriend, an employee and his son all pled not guilty to violating federal drug and product labeling laws.
On Friday, March 29, 2013 LPOE was raided yet again, this time by the Lake Superior Violent Crime & Drug Task Force and the DPD. Carlson and his son were both arrested and charged with four

counts of the sale of a Schedule I controlled substance in the fourth degree. On March 5, an undercover officer entered the shop and bought two baggies labeled “Riptide,” which is a powder being sold as pipe cleaner. The product is a stimulant that users will snort through their nose, smoke or in some cases, even inject. The bags were sent to the Minnesota Bureau of Criminal Apprehension labs for testing. The test revealed that Carlson’s products were positive for an ingredient called Alpha-PVP, which is a Schedule I controlled substance under Minnesota law.

Carlson’s  bail was set at $450,000. As of deadline, it has been confirmed that Carlson posted bail and was released Tuesday afternoon, April 2. By 6:30 p.m. the same evening the store was reopened after being closed since  Friday.
A question of
probable cause

The Fourth Amendment of the U.S. Constitution states “The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and
particularly describing the place to be searched and the persons or things to be seized.”

A sign taped up on the wall in Last Place On Earth

On September 21, 2011, Duluth police raided the Last Place on Earth. They seized $83,000 in cash, $50,000 in incense, computer hard drives and over 30 weapons of Carlson’s personal gun collection. Many of the seized items were not listed on the search warrant, and they even drained the money from the pop machine.

The affidavit for a search warrant used in the first LPOE raid was signed by a Sgt. Andrew Mickus of the Duluth Police Department. The affidavit alleged that the Duluth police had made controlled buys of products at LPOE and forwarded them to Minnesota Bureau of Criminal Apprehension (BCA) crime labs for testing. Many of the products reportedly tested positive for a substance called AM 2201 and the search warrant was approved by a judge based upon that statement.
A complicating factor is that the raid occurred in September of 2011, and AM 2201 was not made illegal in Minnesota until August 2012.

The statute in question (Minn Stat,152.02, Subd. 2 (7)(2011) initially included a list of 15 specific chemical compounds as Schedule 1 narcotics; AM 2201 was not one of them.  The statute also had a provision for “any natural or synthetic material, compound, mixture or preparation that contains any quantity of a substance that is including, but not limited to (list of 15 specific chemical compounds)”.

Sgt. Mickus apparently decided that AM 2201 contained cannabinoid receptor agonist.

The problem is that the Minnesota Bureau of Criminal Apprehension (BCA) crime labs director Frank Dolejsi testified to the Legislature in March of 2012 that neither he nor his scientists could identify what a cannabinoid receptor agonist is. It therefore seems rather unlikely that Sgt. Mickus possesses adequate knowledge to render such an opinion.
Carlson’s attorney Randall Tigue believes that fact should render the search warrant invalid, and filed suit against the City of Duluth in pursuit of that. Tigue believes Mickus’ affidavit to be false testimony and subject to legal penalties but that “ST Louis County would never prosecute one of their own”.

On December 11, 2012 Judge Shaum Floerke ruled against Carlson on the search warrant issue; Tigue will appeal the decision.

Commenting on LPOE”S second raid, Jeanne Cooney of the US Attorney’s office in Minneapolis said “Our purpose was not to file charges against anyone today, we have to execute search warrants in hope of getting evidence to determine if any criminal wrongdoing is being done, and if so by whom.”

Duluth Police actions during the first raid, and Cooney’s statement reinforces the view of Carlson and others that the raids on LPOE are more like a shot in the dark, and not truly supported by probable cause as the Constitution requires.

A similar situation

In June 2012, Jayson Mickle sued the Newport News Sheriff’s Office in federal court for seizing over $600,000 from his smoke shop in Hampton, VA.and personal accounts as well as his residence. Incense products and his 2011 Ford Mustang were also confiscated.

Mickle asserted in his suit, among other charges, that deputies had included “false or misleading” statements on the affidavits that were submitted to obtain search warrants. Several of those affidavits stated as a fact that deputies had earlier seized synthetic marijuana from Mickle’s properties. At the time of said statements, the products had either not yet been received by the state lab or the tests had not been conducted. When the seized products came back from the Virginia Department of Forensic Science, nearly all the products showed up as negative for

controlled substances as listed by Virginia state law. “An unlisted synthetic cannabinoid was indicated but not identified,” the lab reported.

On July 19, Hampton Circuit Court Judge Louis R. Lerner ordered all the seized money and merchandise returned, citing problems with the search warrant affidavits. Most of the cash, as well as the vehicle and some of the merchandise, was returned to Mickle within a week of Lerner’s order. After the order, Lerner sided with Mickle in a further dispute over more of Mickle’s money that was missing after the seizure.


Targeted

Jim Carlson has operated the Last Place on Earth as a head shop and pornography outlet in downtown Duluth for thirty years. He has been raided several times prior to the current battles, but never convicted of any crime.

Carlson has been raided three times since September of 2011 due to his sales of synthetic marijuana and related incense products. After each raid, Carlson has restocked his shelves with incense and continued selling.

Carlson has complained that his business is being unfairly targeted and that many other shops are selling the same products he is, without police intervention.

In the August 30, 2012 Reader we interviewed Duluth Police Chief Gordon Ramsay. Ramsay is on the Lake Superior Drug and Violent Crime task force, which means that he is intimately involved in drug enforcement activities in the area which includes St Louis County, Carlton County, Lake County as well as the cities of Duluth, Cloquet and Superior, Wisconsin. (Ramsay was unavailable by deadline for this story) and asked the following questions:

Reader: Are you aware that the head shops in cities like Moorhead and Brainerd that have been prosecuted, all charges have been dropped. Why can hundreds of stores,according to Carlson, continue selling incense in Minnesota and not have legal ramifications?

Ramsay: To my understanding they’ve reached plea agreements but I wouldn’t say the charges have been dropped.

Ramsay: I’ve talked to other chiefs across the state and if they know it’s in their community they’re dealing with it. Moorhead. Brainerd. Grand Rapids. Those are some conversations I’ve had in the last few weeks.

Reader:  Are you aware that Carlson states that each and every box of product that Last Place receives, and I have one example, comes with a certification from a biotech lab certifying that they have tested samples of each batch, it is free of the presence of banned synthetic compounds. (The letter lists each of over 50 controlled substances and lists each as “not detected”)

Ramsay: Where is their accreditation? Anyone could write some bogus letter. (The Reader later verified the legitimacy of the firm)

Hard Questions

The Reader recently worked less than an hour identifying at least six stores that currently are selling synthetic marijuana within a sixty mile radius of Duluth, under the street names of Posh and Bizarro.  The Reader witnessed sales of Bizarro in two stores in St Louis County alone, and interviewed the manager of one of them. To his knowledge there are many stores selling synthetic marijuana in Minnesota, and none of them are are pressure from police except Carlson. One store even posted their price list openly. Unless one assumes that no one on the drug task force is capable of discovering any of said shops, it is clear that Carlson is correct in his assertation that others are being allowed to sell with impunity.

If Carlson’s synthetic marijuana / incense products are indeed illegal, why are no efforts being made to persecute his accomplices? The United States Post Office and United Parcel Service routinely intercept the packages Carlson is shipped, inspects them, reads the same lab certification Carlson later reads and then delivers them to Last Place on Earth. If the products are indeed illegal, the Post Office and United Parcel Service have every opportunity to turn the products in to the DEA.

If Carlson’s synthetic marijuana / incense products are indeed illegal, why are no actions being taken against his suppliers, which are all US companies and easily within the reach of US law enforcement?

A precendent case called State vs Ali at the Minnesota Court of Appeals states that to charge criminnally, the suspect must have actual knowledge of the substance they are selling. If the State of Minnesota doesn’t know how to identify or adequately explain what compounds are indeed illegal,  they may face an insurmountable burden proving that Carlson would be cognizant of such facts.

Mark Jeneson contributed to this story