Operation Candy Crush: Investigators, prosecutors questioned case before padlock order

A single lab report may have pushed prosecutors to pursue the county-wide Operation Candy Crush investigation despite qualms from multiple agencies involved, records obtained by the USA TODAY NETWORK-Tennessee show.

In February, a joint task force of local law enforcement agencies padlocked 23 local businesses on the orders of the court, accusing the owners of illegally selling controlled substances.

Twenty-one Rutherford County store owners were indicted on felony charges related to the sale of illegal drugs, namely cannabidiol, commonly known as CBD.

The non-psychoactive drug is often sold as a mood enhancer or pain reliever. It is not marijuana, but a derivative of the industrial hemp plant, which is legal in Tennessee.

"I don’t know that we will ever come back completely from all the officials standing up in front of cameras and calling us drug dealers that are trying to attract children," Kaleidoscope store owner Stacey Hamilton said.

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All charges in the sting were later dropped after the district attorney general's office backtracked on the claim the CBD was illegal under current statutes. Hamilton said she and the other store owners may never recover financially from the charges.

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Many of them plan to file individual lawsuits against the agencies involved, she said.

"There has to be a full and complete investigation," Hamilton said. "Rutherford County taxpayers, state taxpayers and the people harmed by this deserve that much."

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Questions from all sides

An assistant district attorney expressed concerns about the evidence, sheriff’s office detectives felt a padlock order was “extreme,” and Tennessee Bureau of Investigation lab results may have been more inconclusive than previously believed in the lead up to the Operation Candy Crush raids.

Law enforcement officers began seizing one brand of potential “CBD candy” based on a May 2017 lab report, but later reports show the items were sometimes not tested, produced inconclusive results or did not contain the key CBD element at all.

Many of the records received were heavily redacted, concealing the names of investigators from area law enforcement offices.

Assistant District Attorney General John Zimmerman expressed concern about "Operation Candy Crush" evidence as far back as Dec. 1, 2017, according to an email released by RCSO.

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In the email, Zimmerman asks for clarification on the wording of some TBI lab reports. It was sent to four TBI workers, District Attorney General Jennings H. Jones and a redacted email address.

“Before we indict these owners of businesses, and padlock their businesses, we want to make sure we are understanding what is being offered for sale,” Zimmerman wrote.

Zimmerman was able to confirm that the first tests were of a gummy candy item that was later sold under the “Hemp Bomb” brand, and that gummy candies in question in four attached lab reports came from the same manufacturer using the same packaging.

Building the case

“This was the first lab report that kicked off this investigation,” Zimmerman writes in an aside, as he asks for clarification on later tests that should — but may not have — been sufficient evidence for the later case.

Law enforcement officers were instructed to purchase “Hemp Bomb” candies from other stores across the county. The email misspells the name occasionally, referring to it as “Hemp Bond,” but appearing to indicate it is the same brand.

The email goes on to highlight the reports' inconsistency in labeling cannabidiol, when found, as a Schedule VI substance, an important point of interpretation that would later bring down the case.

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Detectives ask for direction

An RCSO internal affairs review shows that deputies attempted to slow down the investigation over worries the order to padlock stores was “extreme.”

Sheriff’s office narcotics detectives, referred to as N.D. 1 and N.D. 4, met regularly with internal supervisors and representatives of the DA’s office to “seek prosecutorial direction on the case.”

“One concern was the lab report stated CBD was a Schedule Six, but it could not be found in the Tennessee Code Annotated,” the report stated.

"One of the focuses of our business is to help people that may want to buy these items online, but are not internet savvy," Hamilton said. "We've lost customers, we've lost revenue. It has been hugely emotional and tragic for my business and my family."

Reports overall inconclusive

The indictments eventually passed to Operation Candy Crush store owners were heard before the December Rutherford County Grand Jury.

Nine reports were issued from TBI labs before the Dec. 11 arraignments of that grand jury. Five additional reports were issued in late January, but it is unclear if those exhibits were submitted to the TBI before the grand jury sat.

Of those, 11 reports indicated more than one exhibit was provided in that batch.

In all but two of the of the above tests that included more than one exhibit, only one exhibit was tested when it was found to contain cannabidiol or cannabinol, a similar derivative.

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If a single exhibit was found to contain what was labeled as a controlled substance, no other exhibit was tested, lab reports show.

Only one report contained a cannabidiol not labeled as a Schedule VI controlled substance, as noted in Zimmerman's email.

Evidence not strong enough

The TBI reports both labeled the majority of cannabidiol-containing products as controlled substances, and only tested until the presence of that specific substance was confirmed. The TBI claims it never made any assumptions about the legality of the included substances.

Indictments against store owners rested on the charge they were selling illegal substances. The charges were dropped when the prosecution was unable to confirm that it was illegal to buy or sell cannabidiol products under current Tennessee law.

Without testing the rest of the items seized, it is unclear if any other controlled substances were present in the items sold by the store owners.

The TBI’s statements indicate that they were clear on the limits of their testing ability.

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“Our laboratory analysis can only determine relevant compounds, not the particular origin of those substances," spokesman Josh DeVine wrote in February 2018. "In fact, such a determination is beyond the capability of contemporary drug identification.”

DeVine’s assertion that this was made clear to investigators is upheld in the narrative of the OPR report.

A Jan. 11, 2018, meeting between N.D. 1, TBI agents and ADAs confirmed the intention of the District Attorney’s office to proceed with the charges even in the face of RCSO resistance and questions from within their own department.

Tensions rise

After the indictments, but before the public raids, the relationship between the sheriff’s office and the district attorney’s office seem to sour, according to the narrative in the OPR report.

A “contentious” Feb. 2 meeting was held with RCSO Maj. Bill Sharp, some narcotics detectives and representatives from the DA’s office after Sheriff Mike Fitzhugh refused to “override” Sharp’s decision to postpone the padlock order.

On Feb. 5, plans for a multi-agency meeting involving at least the RCSO and Smyrna Police Department was scheduled for the next day, documents show. That was also the day that plans for the Feb. 12 news conference were coordinated, according to the OPR report.

The TBI was scheduled to attend that news conference, but never did.

RCSO bound by state law

“My review reveals the arrest and padlocking were the most problematic areas of agreement between the Sheriff’s Office and District Attorney’s Office,” the OPR investigator wrote.

The order to padlock the stores was included in the “Petition for Abatement of Nuisance” filed by the DA’s office to remove the “public nuisance” caused by the businesses that office claimed were selling controlled substances.

“This is a statutory remedy in which neither Sheriff, nor deputies have special standing to petition,” the OPR investigator wrote.

Reach Mariah Timms at mtimms@dnj.com or 615-278-5164 and on Twitter @MariahTimms.