A judge has denied a suppression motion in the case of a man charged with possession of salvia.

Kenneth Rau, 47, is believed to be the first person in the United States to be charged with possession of salvia, which is a Class Cfelony. He also faces charges of Class A misdemeanor possession of drug paraphernalia and Class B misdemeanor possession of marijuana.

Salvia divinorum and its active ingredient, salvinorin A, were declared a schedule one narcotic by the 2007 North Dakota Legislature. Salvia divinorum, a perennial herb, is native to Mexico, and related to other varieties of salvia, which are common garden plants. While salvia divinorum has hallucinogenic effects when chewed or smoked, other varieties of salvia are not known to have such effects.

Bismarck police found 8 ounces of the herb in Rau's home while assisting on a parole and probation search related to Rau's son, Scott Rau, on April 7, 2008.

Rau and his attorney, Ben Pulkrabek, moved for South Central District Judge Tom Schneider to suppress evidence found in the search.

Probation Officer Kevin Hagen testified at the hearing that Scott Rau's probation had a clause in which officers could search his belongings or any place he was living, even if he was living there temporarily. Several people told officers Scott Rau lived with his father, so officers wanted to search Kenneth Rau's apartment after arresting Scott Rau.

Hagen said common areas of the apartment and Scott Rau's bedroom were the objects of the search, but officers had to "clear" the apartment to ensure no one else was inside. Bismarck Police Det. Paul Olson walked through Kenneth Rau's bedroom to make sure no one was inside, and while doing that saw a marijuana pipe in plain view on a computer stand.

Olson said "clearing" homes and buildings is a safety precaution for officers. He said officers had a "knock-down, drag-out fight" involving a baseball bat while arresting Scott Rau, who had been hiding in the closet of a next-door apartment, so officers had reason to fear for their safety.

Kenneth Rau signed a waiver allowing officers to search his room after Olson told him he had seen the pipe and would try to get a search warrant if Rau did not sign the waiver.

Schneider denied the motion, deciding that Rau, a former attorney, was an "intelligent individual" who had decided to allow the search of his bedroom to take place.

Pulkrabek argued that there was no convincing evidence that Scott Rau lived in the apartment, and that officers should have waited for Kenneth Rau to arrive home before beginning the search.

The case had been set to go to trial on Jan. 21, but Schneider said it will be moved back because witnesses would not be available.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com.)