Paraphernalia Possession Not Sufficient to Establish Probable Cause for Intent to Use in Washington

Probable cause is required for a warrantless arrest.  To have probable cause, the arresting officer must be aware of facts or circumstances that are based on reasonably trustworthy information that is sufficient to cause a reasonable officer to believe a crime was committed.  If the arresting officer did not have probable cause for the warrantless arrest, evidence discovered in a search incident to that arrest should be suppressed.

A Washington appeals court recently considered whether possession of a pipe known by the officer to be of a type commonly used to smoke methamphetamine was sufficient to create probable cause.  Two deputies responded to a call from a drugstore that a man was inside the store stuffing items in his jacket.  One of the deputies detained the defendant on suspicion of shoplifting, although he did not have any unpaid merchandise with him.  When the deputy frisked the defendant for weapons, he felt something he identified as being the shape of a methamphetamine pipe.  He removed the pipe from the defendant’s pocket.  The defendant was arrested, and, during the search incident to the arrest, the deputy found a bag of methamphetamine on the defendant.

The defendant was charged with possession of methamphetamine.  He moved to suppress.  He was ultimately convicted as charged in a bench trial. The defendant appealed, arguing the deputies did not have probable cause to arrest him.

The state argued that the deputy had probable cause to arrest the defendant for possessing drug paraphernalia with intent to use it, as defined by the county code.  The appeals court noted, however, that mere possession of paraphernalia is not enough.  The defendant was originally stopped due to suspicion of shoplifting, which is unrelated to drug use.  The state did not present any evidence that he was using the pipe or even under the influence of drugs when he was stopped.  The state did not present any evidence that the defendant told the police about the pipe or the reason he had it.

The deputy testified that the pipe was “clearly” a methamphetamine pipe when he felt it through the defendant’s pocket.  He further testified that he knew what it was because he had 10 years of experience and training.  He testified that there was nothing else with the same physical characteristics and that the pipes were marketed and sold as incense burners.

The state argued that the deputy’s knowledge of the “unique nature” of the item gave him a reasonable belief that the defendant intended to use it for methamphetamine.  The appeals court noted, however, that the deputy’s testimony showed that the item had more than one use.  The deputy had testified that the item was sold as an incense burner and could be purchased at gas stations.

The appeals court found that the officer’s knowledge that a particular type of pipe is commonly used for smoking methamphetamine was insufficient to lead a reasonable person to the belief that the person possessing it intended to use it to smoke methamphetamine.  The appeals court found that mere possession is insufficient to establish intent to use.

The appeals court found there was no evidence the defendant possessed the pipe with the intent to use it to smoke methamphetamine, and therefore the deputies did not have probable cause to arrest him.  Without probable cause for the arrest, the search incident to the arrest was unlawful.  The trial court should have suppressed the methamphetamine found in that search.  The appeals court reversed.

This case shows that possession of drug paraphernalia alone is not sufficient probable cause that the defendant had an intent to use.  Our Washington drug crime attorneys understand the laws around appropriate searches.  We aggressively defend our clients.  If you are facing criminal drug charges, call  Blair & Kim, PLLC, at (206) 622-6562.

More Blog Posts:

Washington Appeals Court Finds No Unlawful Seizure in Drug Possession Case

Washington Court Finds Traffic Stop Constitutional When Defendant Crossed Fog Line


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