State v. Dunn, s. 54902

• Decision Date: 29 April 1983
• Docket Number: 54903,Nos. 54902,s. 54902
• Parties: STATE of Kansas, Appellee, v. Tom A. DUNN and Gary V. French, Appellants.
• Court: Kansas Supreme Court

Page 1286

662 P.2d 1286

233 Kan. 411

STATE of Kansas, Appellee, v. Tom A. DUNN and Gary V. French, Appellants.

Nos. 54902, 54903.

Supreme Court of Kansas.

April 29, 1983.

Syllabus by the Court

1. The rules relating to probable cause for the issuance of a search warrant are stated and applied.

2. The test to determine whether a criminal statute is unconstitutional as being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.

3. The Kansas Drug Paraphernalia Act, K.S.A.1982 Supp. 65-4150 et seq., provides sufficient notice of the criminal conduct proscribed by requiring a subjective intent on the part of the seller that the prohibited items constitute drug paraphernalia and are to be used as drug paraphernalia.

4. The fourteen factors listed in K.S.A.1982 Supp. 65-4151 to be considered in determining whether an item is drug paraphernalia and the seller's intent with regard to that item provide adequate guidelines to guard against arbitrary and discriminatory enforcement of the Act.

5. The record on appeal in a criminal action is examined and it is held: Sufficient evidence was presented to support the decision of the trial court that certain items admitted into evidence were drug paraphernalia, and that the appellants intended the items to be drug paraphernalia and knew or reasonably should have known they would be used as drug paraphernalia.

Timothy J. Turner, Prairie Village, argued the cause and was on the brief for appellants.

Paul J. Morrison, Asst. Dist. Atty., argued the cause, Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is a criminal action in which Tom A. Dunn and Gary V. French (defendants-appellants) appeal convictions for possession with intent to deliver drug paraphernalia, in violation of the Drug Paraphernalia Act, K.S.A. 65-4150 et seq. (All further references to the Act are found in the 1982 Supplement to the Kansas Statutes Annotated.) On appeal the defendants contend (1) the trial court erred in refusing to suppress evidence seized pursuant to a search warrant, (2) the Act is unconstitutionally vague, and (3) there was insufficient evidence to support the trial court's conclusion that the items seized were drug paraphernalia or that the defendants had the intent to sell the items as drug paraphernalia and reasonably should have known they would be used for such purposes.

The defendants own and operate a retail establishment named "The Choosey Beggar" in Overland Park, Johnson County, Kansas. In addition to clothing and clothing accessories, the store offered for sale various glass and plastic water pipes, some of which were referred to as "bongs"; small pipes made of metal, wood, glass, plastic and ceramic of different colors, some containing small mesh-like screens; "cocaine kits" consisting of a mirror, razor blade, small spoon and vial; various small spoons and vials; small clips of various designs, commonly referred to as "roach" clips; rolling papers, snuff wrappers and envelopes; cigarette cases and "concert kits" containing a small pipe, small screens, pipe cleaners, plastic bag, matches, rolling papers and a roach clip. Some of these items were decorated with marijuana leaf designs. Many items bore small stickers stating "Not for sale to minors" and "Not intended for illegal use."

On November 13, 1981, a search warrant for The Choosey Beggar was issued and many of the above-described items were seized. Subsequently the defendants were charged with possession of drug paraphernalia with intent to deliver for illegal use with controlled substances in violation of K.S.A. 65-4153. The defendants unsuccessfully moved to quash the search warrant and suppress the evidence seized thereunder. After hearing evidence presented by both sides, including expert testimony concerning the use of the seized items in evidence, the court found the defendants guilty and imposed a $2,500 fine and 90-day jail sentence on each.

The defendants first contend the affidavit in support of the search warrant was insufficient to establish probable cause that a crime had been committed. The affidavit for the search warrant stated the following facts:

"On November 12, 1981 at approximately 3:00 p.m., Overland Park Police Officers Faddis and Mann entered the Choosey Beggar retail store located at 7619 Metcalf in Overland Park, Johnson County, Kansas. The Choosey Beggar is a retail store open to the public. At the east end of the store along the north and south walls the officers observed the following merchandise for sale: several glass and plastic water bong pipes, several small pipes made of metal, wood, glass, stone, plastic and ceramic of different colors, some emblazoned with a marijuana leaf design, cocaine cutting or 'snuff' kits, roach clips of various designs, cocaine spoons and vials, 'sno-seel' envelopes for storing & concealing controlled substances, various carburetor and/or chamber pipes and tubes resembling rolled-up U.S. currency used for ingesting or inhaling controlled substances. The officers believed the above mentioned items are drug paraphernalia as defined in Chapter 140 of the 1981 Kansas Session Laws."

Chapter 140 of the 1981 Session Laws was codified in K.S.A. 65-4150 et seq. K.S.A. 65-4153 provides in pertinent part:

"(a) No person shall deliver, possess with intent to deliver, manufacture with intent to deliver or cause to be delivered within this state:

....

"(2) any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to ... store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act."

The definition of drug paraphernalia and groups of specific objects which may constitute drug paraphernalia if used for a prohibited purpose are set forth in detail in 65-4150(c). These include:

"(9) Capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled substances.

"(10) Containers and other objects used or intended for use in storing or concealing controlled substances.

....

"(12) Objects used or intended for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as:

"(A) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;

"(B) water pipes;

"(C) carburetion tubes and devices;

"(D) smoking and carburetion masks;

"(E) roach clips (objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand);

"(F) miniature cocaine spoons and cocaine vials;

"(G) chamber pipes;

"(H) carburetor pipes;

"(I) electric pipes;

"(J) air-driven pipes;

"(K) chillums;

"(L) bongs; and

"(M) ice pipes or chillers."

In Kansas Retail Trade Co-op. v. Stephan, 522 F.Supp. 632, 639 (D.Kan.1981), aff'd in part, rev'd in part 695 F.2d 1343 (10th Cir.1982), it was held that in order to obtain a conviction under the statute a prosecutor must prove:

"(1) [T]hat the defendant seller or manufacturer intended the item to be drug paraphernalia; and (2) that the defendant knew, or he acted under circumstances where one reasonably should know, that the ultimate buyer would use the item as drug paraphernalia."

See also Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1366 (10th Cir.1981).

The appellants contend the necessary elements of the crime, that the items were intended to be drug paraphernalia and the defendants knew the items would be used as such, were not set forth in the affidavit and therefore the factual allegations were insufficient for a judge to determine whether a crime had been committed.

It is axiomatic that a search warrant may not issue except upon a showing of probable cause. Sufficient facts must be placed before an issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant's personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause. State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977); State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982). A mere statement of an officer that he believes or had good grounds to believe contraband or other items subject to seizure are located in a specific vehicle or place is not sufficient to support the issuance of a search warrant. State v. McMillin, 206 Kan. 3, 5, 476 P.2d 612 (1970).

What constitutes probable cause was discussed in State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), rev'd in part on other grounds, State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978):

"Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. (Henry v. United States, 361 U.S. 98, 102, 4 L.Ed.2d 134, 80 S.Ct. 168 [1959].) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in...