June 25--NEWPORT NEWS -- After the Newport News Sheriff's Office seized hundreds of thousands of dollars from Jayson Mickle and several of his companies last summer, the tobacco shop owner says he didn't initially have the cash to pay his workers.
According to court documents, Newport News sheriff's deputies confiscated $611,388 in cash -- as well as a 2011 Ford Mustang -- from Mickle and his companies as part of a June 2011 investigation into the suspected sale of synthetic marijuana from his shops.
The deputies began the investigation after a new state law went into effect three months earlier banning synthetic marijuana, sometimes known as "Spice."
"They emptied the accounts," said Mickle, referring to bank accounts his business had. "Those accounts are what the businesses use on a daily basis to cut a payroll. It affected (more than 40 families) and their ability to pay for their housing, food and other needs."
He also said they emptied personal bank accounts in his name, and took cash from his shops, residences and a bank safety deposit box.
Mickle said workers were able to get paid only because his father, David Mickle -- who is also a part owner of the tobacco shops but whose personal funds were not seized by deputies -- dipped into his personal cash to pay the workers.
"They didn't seize any money from my father, so we paid the employees out of his pocket," Jayson Mickle said. "We had no idea at the time whether he was going to get reimbursed."
Mickle added that the cash seizures also made it difficult to replenish the stores' stock of inventory, much of which had also been confiscated.
Mickle, 27, is the owner of three Hampton Pipe & Tobacco shops -- in Newport News, Hampton and Gloucester. He also owns various other companies that provide products for those stores.
Earlier this month, he sued Newport News Sheriff Gabe Morgan and eight of his sheriff's deputies in U.S. District Court in Newport News. He contends the deputies ran roughshod over his rights and that the searches and seizures -- of the cash and the store product -- were illegal.
The searches and seizures were illegal, Mickle's suit contends, because deputies included false or misleading statements on affidavits that were submitted to judicial system magistrates in order to get them to sign off on search warrants. Warrants were then issued to search stores and residences, and to confiscate money.
Several of those affidavits, the suit said, stated as a fact that deputies had earlier seized synthetic marijuana from Mickle's properties. But in fact, the suit says, at the time of those statements the seized product had either not yet been sent to the state lab or the tests had not been performed.
And when the seized product later came back from the Virginia Department of Forensic Science, nearly all the products came back as negative for synthetic marijuana listed in Virginia law.
In several cases, however, the tests came back saying that the product appeared to be synthetic marijuana, but it wasn't on the state's list of banned chemicals. "No controlled substances listed in (state law) were identified," the lab said in several cases. "An unlisted synthetic cannabinoid was indicated but not identified."
The suit claims that only one package -- found in a "dusty suitcase" in a warehouse -- tested positive for synthetic marijuana. Mickle said that package was not for sale and was picked up at a trade show in August 2010, well before the new state law went into effect.
The suit also claims that other statements in the affidavits were false, such as one deputy's claim that he was able to smell "the distinct odor" of synthetic marijuana through a sealed box with commercially sealed packets inside.
Morgan has not commented to the Daily Press on the lawsuit against him or his deputies. The Sheriff's Office's public information officer, Lt. Kathleen Carey, said the Sheriff's Office's policy is not to comment on pending litigation.
There's also an issue in the suit over whether everything was returned to Mickle as required.
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 Ford Mustang and some of the merchandise, was returned to Mickle within a week of Lerner's order, Mickle said.
But some of the items still have not been returned more than a year later, Mickle said. That includes what Mickle contends is "thousands" of dollars in merchandise and "two or three" mobile phone cards that are needed for the operation of cell phones.
There's also a dispute over $3,000 in cash.
Mickle contends that the deputies confiscated $55,000 in cash from one of his residences, saying that they refused his specific request to count it in front of him. But when Mickle got a list of the seized items, it showed that only $52,000 was seized -- $3,000 less than Mickle says he had.
Mickle says he knows exactly how much he had. "There's no way possible that it was less than $55,000," Mickle says. In his ruling on July 19, Lerner bought Mickle's argument and ordered $55,000 returned.
But so far, the suit says, the Sheriff's Office has returned only $52,000.
Mickle, 27, grew up in Hampton, returning to the city in 2008 after graduating from Phoebus High School and Virginia Tech. He said that he and his father began a business selling knives and other items at a flea market on Jefferson Avenue in midtown Newport News.
Soon enough, he said, he and his father raised enough money to open a cigar shop.
They first began selling tobacco products at a kiosk at Patrick Henry Mall in February 2009, and then in April 2009 opened a store on West Mercury Boulevard in Hampton. They later opened stores on Warwick Boulevard in northern Newport News and on George Washington Memorial Highway in Gloucester.
Mickle would not give the Daily Press a rundown of his annual sales, and would not provide a percentage breakdown between traditional products (such as tobacco, cigars and pipes) and products marketed as "incense."
The only thing he would say is that sales have risen "steadily" since he formed the business in early 2009.
In recent years, there's been an explosion across the country in the sale and use of synthetic marijuana, sometimes referred to as "Spice." But the substance -- a man-made chemical that mimics the effects of real marijuana -- has been blamed for causing health issues in young users.
Warning labels say the product, usually dried leaves doused with the chemicals, are "not designed for human consumption," with the product marketed as "herbal incense." And often, people who talk openly in the shop about using the product to smoke or get high are barred from purchasing it.
Still, many people do use the product to get high -- sometimes because the product often doesn't show up during drug testing.
But Mickle insists that he only sells products for their legal purposes, and he doesn't know of people using it for any other purpose. He says he sends out the products he sells for extensive testing, to ensure that it meets all legal requirements under Virginia and federal law.
He said he was not surprised when the Department of Forensic Science tested his products, with such names as "Head Trip Blueberry" and "Einstein Potpourri," and determined that the chemical compounds were not listed as synthetic marijuana under Virginia law.
"They didn't come back as negative by happenstance," Mickle said. "We fully expected" that there would be no issues.
Mickle said that he can't control things "as far as what people are doing" with the product once it's sold. He said he won't sell the product to someone who indicates they will smoke it. "But other than that, we can't not sell the product to someone who wants to buy it legally."
Gray Broughton, Mickle's lawyer with the firm of Williams Mullen, said of his client: "He is an entrepreneur, who has started up and is running a number of businesses. He has done everything he could along the way to make sure the goods and services he provides are legal."
Broughton pointed out that no criminal charges have been filed against Mickle as a result of the sheriff's investigation. "It's not some seedy drug-dealing operation under the cover of darkness," he said. "He's opened these businesses openly, legally and honestly and doing his best to make sure they succeed."
Copyright 2012 - Daily Press, Newport News, Va.
