Prosecutor: K2 synthetic pot may already be illegal in Indiana

[Lucinda F. Boyd]

SOUTH BEND — A potential "game changer" emerged late Wednesday in St. Joseph County's new fight against synthetic marijuana. Local leaders say the herbal incense known as K2, Spice, Mr. Smiley or Mr. Dutch may already be illegal.

K2 is sold legally in gas stations and convenience stores across the area. South Bend Police have identified at least 11 stores selling the product in the city. Elkhart Police have identified at least 10 stores doing the same.

The leafy green substance looks like marijuana, but in Indiana and Michigan, it's marketed as a "legal herbal incense." Police say a growing number of teens are also smoking it to get high.

If it is smoked, it becomes a sort of “synthetic pot,” mimicking marijuana’s high, only more potent and dangerous. Police say it’s becoming especially popular among teenagers.

The substance has already been outlawed in several countries and at least eight states, including Kansas, Kentucky, Illinois, Georgia, Missouri, Tennessee, Utah, and North Dakota.

But, in Indiana and Michigan, it remains legal, completely unregulated, and widely available under a myriad of names. Among them: K2, Spice, Mr. Smiley, Mr. Smiley Face, Orange Dragon Smoke, Black Mamba, Genie, Blaze, Red X Dawn and Zohai.

But, late Wednesday, flanked by an army of city, county, state and local law enforcement leaders, St. Joseph County Prosecutor Michael Dvorak said it's possible K2 isn't actually legal in Indiana at all.

"We do not need to wait for a legislative fix in Indianapolis and I don't think our local legislative bodies need to pass any new ordinances. Indiana law already provides for us to have the ability to prosecute and attack this problem as a concerted law enforcement effort," Dvorak said.

Dvorak cites Indiana's Controlled Substance Analog Act, passed by state lawmakers in 2003. Under the act, any substance that mimics the effects of an already illegal drug--like marijuana--can also be classified as illegal.

Click here to read the text of Indiana's Controlled Substance Act, as provided by the St. Joseph County Prosecutor's office.

"The assumption has always been made that this is a legal substance that's legal to sell. And, simply put, we don't know that that's true," said State Representative Ryan Dvorak (D-South Bend).

"Detailed testing has not been performed on this substance in Indiana, but when it's been performed on similar products by federal authorities and authorities in other jurisdictions, it's often been found to contain chemicals that are listed as schedule one controlled substances, meaning they're definitely illegal," Dvorak continued.

If that's also the case here in Indiana, Prosecutor Dvorak says criminal cases would be cut and dry. But, even if it's not, the chemicals in K2 may still be illegal.

Testing is now underway at the Indiana State Police lab on samples of K2 taken from gas stations and convenience stores in St. Joseph County.

"If [those] tests come back that it is a schedule one controlled substance or schedule two controlled substance or an analog of those controlled substances, and we can prove that it has hallucinogenic effects, we're going to be able to prosecute," Prosecutor Dvorak said.

Anyone convicted under the Controlled Substance Analog Act would face the same class A or Class B felony possession or distribution charges as they would if they'd been caught with the actual drug.

It's particularly important for that testing to be expedited, Prosecutor Dvorak said, because the dangers of K2 are beginning to surface here in St. Joseph County.

"We were dispatched to a call on Friday evening at approximately 8pm involving a 911 hangup. Upon responding to that call, our officers found three teenage boys inside a home all alone. One of the teenage boys was lethargic, couldn't respond, and couldn't answer questions given to him by the officers," said St. Joseph County Police Sergeant William Redman.

"At the time the officers arrived, his heart rate was 180 beats per minute. For a 15 year old, the standard heart rate should be about 60-80 beats per minute. It was later found out that he had admittedly smoked K2 prior to our arrival," Redman continued.

Indiana's Poison Control Center reports 38 other similar cases of suspected K2 related complications already this year. A recent USA Today investigation found 352 K2 related medical cases in 35 states.

Among the problems reported to Indiana's Poison Center over the last 18 months:

• anxiety • pale skin
• numbness and tingling
• rapid pulse (110-150 beats/minute)
• elevated blood pressure (140-160/100-110 mmHg)
• vomiting
• agitation
• hallucination
• drowsiness
• slurred speech
• dilated pupils
• low potassium levels
• eye swelling, tremors and seizures

This week, local leaders in South Bend and Elkhart called for store owners to voluntarily remove the product from their shelves. On Wednesday morning, the Always Open convenience store at Lincolnway West and LaSalle Avenue agreed to comply.

"Some of our kids and minors are buying it, and that's the only reason I'm doing it," said store owner Goldy Singh. "I'm just trying to help out the community."

Elkhart police checked 20 convenience stores at random. Five stores in Elkhart have also voluntarily removed K2 from their shelves. Five others have refused, and 10 stores never sold the product.

"We're so appreciative of this owner for taking the initiative to [remove the product]. I'm very, very confident that the pressure we apply on other owners will make them follow suit," said South Bend Health and Public Safety Committee Chair Karen White, standing outside the store Wednesday morning.

In case they don't, police are contacting store owners directly, giving them a letter from Dvorak and 30 days to pull the product from their shelves.

Click here to read the letter sent to retailers by Prosecutor Michael Dvorak.

"We're going to give them an opportunity to stop selling it. If they don't stop selling, we're going to investigate. We'll then take that case up to the prosecutor's office for prosecution. And, that's what we've been waiting for," said South Bend Police Lieutenant David Ryans, of the city's Street Crimes Unit and Metro Special Operations Section.

"We're giving them fair warning, and then we'll send people in to make buys from them. It's going to be that simple. If they continue to sell, they'll be prosecuted," Ryans said.

"We're letting retail merchants know that they're not going to have a free ticket to sell this stuff," Rep. Dvorak added.

"We will--and I repeat that--we will aggressively attack this problem," said South Bend Police Chief Darryl Boykins. "And hopefully, it will solve it.".