IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 75305-3-1
Respondent, )
) DIVISION ONE
v. )
)
CARLOS TRAVOR BROWN, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: July 10, 2017
)
BECKER, J. — Mere possession of a pipe, even one with a distinct shape
associated with methamphetamine use, does not establish probable cause to
arrest for possession of drug paraphernalia with intent to use it to ingest or inhale
a controlled substance. Appellant's conviction for possession of
methamphetamine discovered during a search incident to arrest is reversed.
Deputy Troy Koster and another deputy were dispatched to a drugstore in
Lynnwood to respond to a call from the store's loss prevention officer. Dispatch
reported that a person later identified as appellant Carlos Brown was inside the
store, stuffing items into his jacket.
Deputy Koster detained Brown on suspicion of shoplifting. Brown did not
have any unpaid merchandise with him. Deputy Koster frisked him for weapons.
No. 75305-3-1/2
He found no weapons, but he felt the shape of what he recognized as a
methamphetamine pipe. He pulled it out of Brown's pocket. Brown was placed
under arrest. Deputy Koster searched Brown Incident to arrest and discovered a
bag of methamphetamine on Brown's person.
Brown was charged with possession of the methamphetamine. Brown
unsuccessfully moved to suppress.
Brown stipulated to a bench trial on agreed documentary evidence. The
court convicted Brown as charged. Brown appeals and argues that the deputies
did not have probable cause for the arrest.
A warrantless arrest must be based on probable cause. State v. Bonds
98 Wn.2d 1, 8-9,653 P.2d 1024(1982), cert. denied,464 U.S. 831 (1983).
Whether probable cause exists is a question of law that this court reviews de
novo. State v. Chamberlin 161 Wn.2d 30,40-41, 162 P.3d 389(2007).
Probable cause exists when the arresting officer is aware of facts or
circumstances, based on reasonably trustworthy information, sufficient to cause
a reasonable officer to believe a crime has been committed. State v. Gaddy, 152
Wn.2d 64, 70,93 P.3d 872(2004).
The State contends the arresting officer had probable cause to arrest
Brown for the crime of possessing drug paraphernalia with the intent to use it, as
defined by the Snohomish County Code:
It is unlawful for any person to use, or to possess with intent to use,
any item of drug paraphernalia to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale, or otherwise introduce into the human body a
controlled substance in violation of this act. Any person who
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No. 75305-3-1/3
violates this section is guilty of a misdemeanor and upon conviction
may be imprisoned for not more than 90 days or fined not more
than $500,000, or both.
SCC 10.48.020.
More than mere possession of drug paraphernalia is needed to establish
probable cause for possession of drug paraphernalia with intent to use under
SCC 10.48.020. State v. Fisher, 132 Wn. App. 26, 29-30, 130 P.3d 382(2006).
In Fisher, the circumstances of the officer's encounter with the defendant
provided evidence beyond mere possession. The pipe contained burnt residue.
The defendant told the officer that the pipe was not his, but he gave no other
explanation for the pipe's presence on his person. The lack of explanation gave
the deputy reasonable grounds to disbelieve Fishers denial. Because the pipe
was on Fishers person and because it had been used to inhale a controlled
substance, it was reasonable to conclude that Fisher possessed it with the intent
to use it. Fisher 132 Wn. App. at 29-30.
Here, Brown was stopped due to suspicion of shoplifting, a crime
unrelated to drug use. He was at a drugstore in the middle of the day. At the
suppression hearing, the State presented no evidence that he was using the pipe
or was under the influence of any drugs when the officers stopped him. There is
no evidence that Brown told the police anything about the pipe or why he had it.
Detective Koster testified at the suppression hearing that the pipe was
"clearly" a methamphetamine pipe as felt through Brown's jacket pocket. Koster
said he knew it was a methamphetamine pipe because "I have had 10 years of
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No. 75305-3-V4
training and experience. I've seen them literally all the time. Meth and heroin
are the two biggest drugs out there right now in this area. So they are very
distinct. There's nothing else really that has the same physical characteristics.
The length, the bulbous end, the diameter on them. They're an incense burner.
That's how they are marketed and able to be sold." He testified that
methamphetamine pipes can be sold at gas stations.
According to the State, the deputies' knowledge of the "unique nature" of
the pipe gave rise to a reasonable belief that Brown probably intended to use it to
ingest methamphetamine. But the officers did not actually testify that Brown's
pipe had only one use. In fact, Deputy Koster said the opposite—that such pipes
are marketed as incense burners and can be sold at gas stations.
An officer's knowledge that a certain type of pipe is often used for smoking
methamphetamine is not by itself sufficient to cause a reasonable person to
believe that the person who possesses the pipe intends to use it to smoke
methamphetamine. The State's argument amounts to the unsupported
proposition that mere possession establishes intent to use.
Because there was no evidence that Brown possessed the pipe with intent
to use it to ingest or inhale methamphetamine, the deputies did not have
probable cause for the arrest. The search incident to arrest was therefore
unlawful, and the methamphetamine found during the search should have been
suppressed.
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No. 75305-3-1/5
Reversed.
WE CONCUR:
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