On the morning of May 7, 2014, the Drug Enforcement
Administration (DEA) launched Project
Synergy Phase II, a national "day of raids" in 29 states,
with the goal of taking down purveyors of synthetic drugs who
funnel their proceeds to Middle Eastern terrorist
organizations.
The Purple Zone, a smoke shop in Alpine, Texas, owned by
29-year-old Ilana Lipsen, was the target of one of these
raids. This particular raid was so heavy handed and its aftermath
so clumsily handled by law enforcement that it drew national
attention as a symbol of police militarization and the vagaries of
laws pertaining to drug "analogues." Analogues are chemicals
that are not prohibited but are similar enough to controlled
substances that they become illegal depending on who
interprets the data.
Even worse, The Purple Zone and its owner may have been
targeted because of the personal vendetta of a single
prosecutor.
A Safe Little Town, Filled With Cops
Alpine, Texas has a population of a little more than 5,000
residents. It is quite literally in the middle of nowhere, more
than 200 miles from El Paso, home to the nearest major
airport, and 75 miles from Mexico. Because of the town's
proximity to the border, it is classified as a High Intensity Drug
Trafficking Area (HIDTA), which along with the relative isolation,
makes it an attractive home to a great many in law enforcement,
including members of federal agencies such the DEA and the Border
Patrol. Sul Ross State University, the town's signature
institution, hosts a law enforcement academy.
Alpine evokes the Texas libertarian ethos of a quiet, safe town
where you can expect to be left alone. It's what draws both
bohemian artists as well as culturally conservative folks. How one
feels about Ilana Lipsen and The Purple Zone represents the
schism between the two camps.
"You either love me or you hate me," says Lipsen. "I've received
anti-Semitic hate emails. I've been told to 'go back to Jew York.'
I've had people come in my store and tell me it was 'fucked
up" and that I was poisoning the youth of the town—even though I
have a big sign that says '18 and Over' and I have an ID scanner.
The bars here in Alpine don't have ID scanners, but I
do!"
Originally from Houston, Lipsen arrived in Alpine in
2003, when she enrolled at Sul Ross University to pursue her
interest in Arabian horses by studying equine science. Though she
would leave school before graduating, she still loved the wide-open
spaces of Alpine and decided to make it her home, purchasing a
ranch for her horses and going into business
for herself.
After antique furniture and pet supplies failed to keep her
balance sheet in the black, she wracked her brain thinking
about what was missing from the marketplace of this West Texas
railroad town. The answer she came up with was sex toys and
smoking accessories. And it worked. She called her store The
Purple Zone, which thrives to this day thanks to a loyal,
mostly college-aged consumer base interested in hookahs,
vaporizing, and e-cigarattes.
Raids and Chemical Analogues
In March 2012, "10-12 men came in, SWAT team style" to the
Purple Zone, Lipsen recalls. They told her she was not under
arrest, but cuffed her and threw her in the back of a police van
while they searched her store, seized personal property
including computers, a cell phone, and hard drives. They also took
numerous packets of what Lipsen sells as potpourri in the incense
section of the store, adorned with the colorful brand names such as
"Dr. Feelgood," "Scooby Snax" and "Bomb!
Marley."
Brewster County District Attorney Rod Ponton insists these items
are "spice," or synthetic cannabanoids. But Lipsen
notes, "You can buy these products online or in any gas
station or smoke shop in Texas." She says that she throws out
anyone who insinuates these products are used for anything other
than making your house smell good.
Eight months after the 2012 raid, police returned to arrest
Lipsen and her mother, Rosa (who is not an owner or an employee of
the store, but frequently visits to help clean the store and tend
to her daughter's many pets) on felony charges of "possession
and distribution of a controlled substance."
Though the the Alpine PD and the DEA would make many undercover
purchases at the Purple Zone over the next two years, lab tests
turned up no controlled substances except
for "MAN-2201," "XLR-11," and "PB-22," all of which
were legal in Texas at the time of the raid. In fact, they would
only become illegal in January 2013 when the federal government's
Synthetic Drug Abuse Prevention Act, signed by President Obama
in July 2012, went into effect.
The DEA insists the Controlled
Substance Analogue Enforcement Act of 1986 affords them the
power to prosecute possession of these substances because they
are "similar to controlled substances." It is this enforcement of
"analogues" that landed Lipsen with a felony indictment for
products she believed to be legal.
That wasn't just her opinion. Lipsen spends thousands of dollars
having all the products she sells lab-tested for controlled
substances and has the documentation to prove it. Prosecutor Ponton
also knows how expensive drug testing can be. In March 2014, he
went before the
Brewster County Board of Commissioners, pleading for
thousands of dollars of funds for additional testing on the
seized potpourri packets but was refused out of hand.
Out of resources but intent on proving Ilana Lipsen's
criminality, he would find a willing partner in the DEA, an agency
without his office's budget limitations.
The Project Synergy Phase II Raid
On the morning of Wednesday, May 7, 2014 Project Synergy Phase
II came to Alpine. Led by the DEA and armed with a Brewster County
search warrant (which Ponton had requested), officers from the
Border Patrol, the Department of Homeland Security, the Brewster
County Sheriff's Office, and the Alpine PD broke down the front
door of The Purple Zone with their weapons drawn, turned all
the security cameras against the wall, and tore the place to
pieces.
Nicholas Branson, a geology student at Sul Ross University who
rents an apartment from Lipsen in a neighboring house, returned
from a trip into town to find agents searching his home. He pointed
out that the two buildings had different addresses,
both clearly marked. Branson told the
Big Bend Courier, "When I told them this was my house,
they said, 'Well, that's the price you pay for choosing to live
where you live.'" When he asked to see a search warrant,
he claims a rifle-bearing DEA agent replied, "What are
you, a fucking lawyer?"
The agents seized all of Branson's hard drives, as well as a
shotgun given to him by his grandfather. They also took
what they called "suspected mushrooms," which he says is
a bag of frankincense he kept with some of his geological
collection. Still, as a college student, he's rightfully
terrified at the prospect of a drug charge. Branson told the
Big Bend Courier, "If I get indicted I lose my Pell
grant, my scholarship money, my student loan money. If they charge
me I will lose everything I have been working for the last
five years." A warrant would eventually be issued, hours after the
raid began.
After finding his home upended by body armor-clad agents of
the state, Branson saw Lipsen's sister, Arielle, arguing with
Leticia Carrillo, the Alpine PD's liaison with the PD.
According to Ilana, Arielle told Carrillo they should be chasing
cartels and human traffickers rather than harassing her
sister.
Then, a large male DEA agent told Arielle to stop raising
her voice and leave the premises. Arielle replied "What are
you going to do, shoot me?" The agent then put her under arrest.
According to Branson and the Lipsens, after being thrown, Arielle's
leg flew up and inadvertently struck the agent in the shin,
after which the agent pinned her to the ground with
the butt of his rifle.
The DEA did not respond to our requests for comment, but Laila
Rico, a representative from the DEA's El Paso office, told the
Alpine Avalanche, "If you don't do what you're asked
to do, that's what you're going to run into." Rico also
says Arielle kicked the officer and was thrown to the
ground in the process of being taken into custody.
The store was searched for several hours, by which time Tom
Cochran, owner of Big Bend Screen Printing and an acquaintance of
Ilana Lipsen's, came to the scene and started taking
photographs.
Cochran posted his photos of the scene, as well as a
rectangular-shaped injury on Arielle Lipsen's neck, to his
Facebook page. The DEA called the injury on Arielle's neck "a
scrape" and denied that it could have possibly come from the
agent's rifle.
When it was all said and done, Arielle was indicted for
assaulting a federal officer and Ilana was indicted
for "receiving ammunition while under indictment," a federal
charge so rarely enforced in a state with as many guns as Texas
that Ilana's lawyer, a well-known Texas defense attorney, told me
he had never heard of it. Lipsen says the ammunition in question
was given to her by a friend, the box of which included a receipt
dated after her state indictment following the 2012 raid.
As a Texas rancher, Lipsen has always owned firearms to protect
her horses and other animals from predators. The
cruelest irony of the ammunition indictment is that no products
seized from the 2014 raid turned up any controlled substances or
even analogues of controlled
subtances; they were all herbs and tobacco alternatives. Had Lipsen
not been under indictment for the
questionable analogue charges
from the 2012 raid, there would have been nothing to indict
her for following the 2014 raid.
After learning that she had been swept up in a
terrorist-hunting, Obama administration dragnet, Lipsen was
incredulous. She speculated that her Turkish ethnic background, her
affection for Arabian horses, and the fact that she buys a lot of
her electronic cigarettes from China made her suspicious to the
feds. Still, as a Jewish woman and self-professed supporter of
Israel, she hardly fit the profile of a financial supporter of
Islamist terrorism.
Lipsen suspects that the relentless harassment from law
enforcement stems from an encounter dating back to when she
first arrived in the town as an 18 year-old college
freshman.
"I was introduced by a mutual acquaintance to a man who had
Arabian horses."
The man was Rod Ponton, then an attorney in private
practice.
"He had invited me to meet his horses at his house, and possibly
work with them. I thought, 'Great! A job opportunity.'" She says
that after sharing a bottle of wine with him, "one thing led
to another and I was involved sexually with him."
Though Ponton offered to give his horses to her as a gift,
Lipsen says she was "disgusted with herself" and declined to
have any further involvement with Ponton or his horses after
that. She claims to have seen Ponton drive slowly past her house
"almost like he was stalking me."
Drawing a line from her brief fling with the man now intent on
putting her in prison, a man who in a 2013 court motion referred to
her "singular incorrigibility" and accused her of "poisoning
the youth of the town," Lipsen says, "That was so many years ago. I
didn't think that not calling someone back would get me into all
this trouble."
The Optics of the Aftermath
Lipsen was set to sit in jail for months when her
court-appointed attorney presented her with a most unusual
bond document. As requested by U.S. Attorney Jay Miller, the
federal magistrate on the case hand wrote additional conditions for
her release:
"Will request Tom Cochran retract his blog on Facebook. Will
provide a letter of apology to both local newspapers in Alpine, TX,
advising DEA had a legitimate reason to execute a warrant at her
business. Will advise newspaper A warrant was not executed at her
business because she was Jewish, owned Arabian horses, is of
Turkish decent or because she visited Chinese
websites. Will advise media (KWest 9 news) that her sister,
Arrielle Lipsen, was not beaten by agents carrying/using a M16
rifle, and her sister instigated/assaulted agents."
Faced with the prospect of spending
months in jail until her trial, Lipsen signed the written
retraction, which the Brewster County
Sheriff's Department promptly
posted to its Facebook page with the
message, "Due to the incredible
amount of disinformation being spread through the internet we have
decided to publish this letter. We hope this answers some of the
questions citizens may have regarding the DEA and all law
enforcement in Brewster County."
The Border
Patrol's local union followed suit, adding that
its members voted to boycott Tom
Cochran's screen printing
business. "We hope our brothers and
sisters in law enforcement in the Big Bend area will join us in our
stance against this business, owned by a purveyor of
misinformation, and misleading
photographs," read the
union's statement.
For his part, Cochran says he was visited by Ponton,
who called the photos "inaccurate" and implored him to take
them down, to which Cochran says he replied: "They can't be
inaccurate, they're photos." Cochran thinks what law enforcement
really objects to is how ridiculous it looks for a tiny smokeshop
to be stormed by a paramilitary
force. "They looked
like thugs. That's what they
didn't like."
Bryon Garrison, editor of The Big Bend Courier,
described the town's reaction to the raid this way: "Shock. Why is
this being done? Who would be stupid enough to have illegal drugs
when they've already been raided?"
Ponton declined to be interviewed, saying he would not make any
public statement about the case. An earlier press release from his
office states that "assertions previously made in this
matter by Ilana Lipsen or Tom Cochran are not true." He added that
products previously seized from The Purple Zone "tested
positive for 'Spice,' a derivative of methamphetamine." To add
flourish, he offered this unverified anecdote:
"('Spice' has) caused numerous Big Bend area residents to have
severe reactions, they have gone to the emergency room, one man
hallucinated, stole a Ford Ranchero, then flipped it, killing
himself. This illegal drug is worse than meth, similar to
cocaine, meth or heroin."
Ponton was not yet finished in his efforts to control the
narrative of the case. Scot Erin Briggs, then a reporter for the
Alpine Avalanche, wrote an article called "Long
Arm of Law Reaches into New Territory," published eight days
after the raid. The article includes quotes from the DEA, Brewster
County Sheriff Ronny Dodson, and information provided by Ponton. It
also includes detailed research into the legality of synthetic
drugs and makes clear that the Lipsens have their side of the
story and law enforcement has theirs. In other words, it is
serious, inquiring journalism. Ponton was not pleased with the
balance.
According to Briggs, Ponton visited her at the
Avalanche's office saying "I'm not here to threaten
you." He added that local law enforcement did not appreciate the
article and "we don't consider [the Lipsens] a credible source." He
also scolded her for not grasping how bad "spice" is. Briggs
offered to have Ponton write a letter to the editor, which she
promised to publish. Ponton declined and told her that he had
contacted the paper's owner.
Shortly thereafter, Briggs says the paper's owner told her that
while her facts were sound, "her tone was all wrong."
The Avalanche, like all of its affiliated papers, runs a
tag line that reads "Thank a veteran, member of
armed services or law enforcement every day."
A followup article published with Briggs' byline, "Women
Arraigned in Drug Raid Case," presented only law enforcement's side
of the story. It featured a quote from the DEA's Laila Rico
boasting "It was a good day for us" and using
Lipsen's "apology" letter as evidence that "DEA
acted professionally at all times." Rico hoped that the letter
would receive "the same attention you gave (the Lipsens')
misleading statements and that of the Facebook account of Tom
Cochran." The sole quote from Ilana Lipsen was taken from the
letter she was forced to sign under duress in order to secure her
release from jail.
Briggs says she barely had a hand in writing the followup
article and asked that her byline be removed (it was not). After
that, she says she had to run everything she wrote by the
paper's owner and lawyer, a process so convoluted and frustrating
that after three months she decided to leave her position as
managing editor.
But try as he might, Ponton could not control the narrative for
long. After being initially published by the Big Bend
Courier, and
covered extensively by Reason's Brian Doherty,
actor Wil Wheaton posted Lipsen's document to
his Tumblr account. The bizarre conditions of her release
gained national attention, including that of Washington
Post free speech blogger and constitutional lawyer, Eugene
Volokh,
who wrote:
"This seems to me clearly unconstitutional: It's an order
compelling speech, on threat of imprisonment, which would itself
normally be a First Amendment violation; but on top of that, it was
issued without a trial, and thus without any final factual findings
supporting its validity. I'm aware that, once someone is convicted,
courts have considerable latitude to impose speech restrictions as
a condition of parole or probation, and might even be able to
impose speech compulsions. But that is after someone's guilt has
been proven beyond a reasonable doubt in a criminal trial. The
defendant here hasn't been convicted of anything; she continues to
be presumed innocent until proven guilty.
And courts have held (quite rightly, I think) that the
government has quite limited powers to restrict defendants' speech
as a condition of bail. The proper purposes of bail conditions are
to assure the defendant's presence at trial, to prevent the
defendant from attacking witnesses or victims, and to prevent the
defendant from committing further while released; any speech
restrictions must therefore be tied to those purposes."
The Vagaries of Prosecuting the War on
Drugs
The Purple Zone case is a microcosm for a number of things wrong
with the prosecution of the war on drugs.
First, the arbitrary enforcement chemical analogues means that a
person can be in possession of a product they believe to be
perfectly legal, only to be charged with a felony depending on who
is interpreting the chemical makeup of the substance.
As Lipsen points out, some of the packets seized by law
enforcement can be found for sale in gas stations across Texas, as
well as on the Internet. But in Alpine, "spice" carries a
similar connotation to "bath salts,"
where unverified anecdotes of people doing crazy, violent
things have led to unscientific pronouncements such as "worse than
meth." Lipsen says, "People come into
my store and ask 'Can I smoke
this?' or 'Will this get me
really high?' I tell them, 'You
need to get out of my store.'"
Second, given how small a community Alpine is, and how
well-acquainted law enforcement is with the store and its owner,
there was no obvious justification for a militarized raid on The
Purple Zone, to say nothing of the warrantless search of Nick
Branson's apartment. With no reason to suspect an ambush or
violent resistance, the agents came braced for battle and ransacked
the premises until they were done.
"They came in and made this a violent situation when they didn't
have to," says Tom Cochran. "That's why I took the pictures. We
need to have a discussion about this. There's no need for a
militarized raid on a smoke shop."
Third, when taking into account the bond conditions compelling
an apology from Ilana Lispen, the Border Patrol union and
Brewster County Sheriff's Office's publishing
Lipsen's coerced letter (which
may have been against DOJ guidelines), and Rod
Ponton's strong-arming of the Alpine
Avalanche's reporting, law
enforcement's attempts to control the
public's perception of the case can be
generously described as ethically questionable.
Of her reporting on the raid, Scot Erin Briggs
laments, "The job of a local paper is to get at the truth the
best we can, not be the voice of those in power."
Finally, there is a problem with how easy it was for a local
prosecutor to glom onto the DEA's resources. The warrant to search
The Purple Zone came from the locals, yet the feds were in charge
of the raid. Briggs reported speaking with a former Brewster
County attorney who said it was "highly unusual for
the federal government to cooperate on a warrant with the district
attorney." As Briggs pointed out, "It seemed like a strange
use of taxpayer funds to have a HIDTA task force as part of
the raid. We have access to these funds because we are close to the
border, [but] the funds were never intended to raid the local head
shop."
The DEA was supposedly hunting for drug-dealing,
money-laundering terrorist supporters, but instead appears to
have been roped into one district attorney's personal crusade
against a woman who jilted him years earlier.
Nobody Can Fight the Government Forever
In September, Lipsen pled guilty to first-degree felony
manufacture, delivery, and possession of a controlled substance.
The substances in question were the chemicals found in packets
from the 2012 raid, which were not illegal in Texas at the time.
In exchange for her plea, the charges against her mother were
dropped, and all federal charges stemming from the 2014 raid
against her and her sister were dismissed without prejudice.
The deal includes a deferred adjudication, meaning that the case
goes away without a conviction if Lipsen stays out of trouble for
10 years. However, if she violates any of the terms of her
probation, she could be subject to the "full range" of punishment,
which could be anywhere from 5 years to life in prison.
Why would Lipsen plead guilty to selling controlled
substances that were not, in fact, controlled substances at the
time of her arrest? Perhaps to save her mother and sister from
prison, perhaps to avoid prison, perhaps because her legal bills
are in the tens of thousands and growing by the day. Perhaps
because she just wants to move on with her life.
Lipsen is selling The Purple Zone and moving back to Houston,
where she will own open another store specializing in vaping
accessories. Referring to Alpine, Ilana says, "I love this
town. It's beautiful. I have a lot of friends here. But it's become
toxic. I never wanted to aggravate anybody. I don't do
this for fun. This isn't a hobby, this is how I support
myself. This is how I live."
Pointing out the polarized opinions of Lipsen and The
Purple Zone among the Alpine populace, Bryon Garrison of the
Big Bend Courier says, "Any freedom-loving person
needs to ask, could this happen to me, if I was unpopular? That
shouldn't cause a bias, as far as your freedom is concerned."
He adds, "Nobody has the ability to fight the government
for too long."
Reason TV contacted the Drug Enforcement Administration's El
Paso Bureau, the Alpine Police Department, the Brewster County
Sheriff's Department, and the National Border Patrol Council Local
2509 for comment. In each case, calls and emails went unreturned.
Management at the Alpine Avalanche offered no comment.
About 10 minutes.
Written and Produced by Anthony L. Fisher. Camera by Todd
Kranin. Additional camera by Fisher. Additional graphics by
Meredith Bragg.
Music: "Wet Socks" by Jahzzar
(http://www.betterwithmusic.com)
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