State v. Kellogg, 12434

Decision Date26 September 1979
Docket NumberNo. 12434,12434
Citation600 P.2d 787,100 Idaho 483
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Roscoe A. KELLOGG, Defendant-Appellant.
CourtIdaho Supreme Court

Stanley D. Crow, Boise, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Following trial before a jury, defendant-appellant Roscoe A. Kellogg, who asserts he is a naturopathic physician, was found guilty of the crime of unlawful possession (i. e., without prescription) of a controlled substance, amobarbital and secobarbital, a misdemeanor. After denying defense motions for new trial, motion for acquittal and motion for arrest of judgment, the trial court entered its judgment of conviction, and sentenced the defendant to a $500 fine and a term of six months in the county jail. However, the trial court suspended the jail term and placed the defendant on probation for two years. The defendant appealed from that judgment. This court affirms the judgment for the reasons hereinafter discussed.

Appellant first assigns as error (this appeal having been taken prior to effective date of the Idaho Appellate Rules adopted in 1977) the denial of his motion to suppress. A brief recital of the facts in this regard are in order. Prior to institution of this action an affidavit for a search warrant was filed, seeking authority to search the premises where appellant maintained his office. In this affidavit, L. A. Galland, the director of the City (Nampa) and County (Canyon) Narcotics and Major Crimes Intelligence Division, stated that a certain individual had purchased arthritic medication from appellant (tests reflected that the medication so purchased was a drug with the trade name of Prednisolone). Thereafter a detective under affiant's direction purchased without a prescription more arthritic medication from appellant, supposedly for the use of the first individual. The affidavit further recited that the affiant was advised by a member of the State Board of Pharmacy that appellant was not a person authorized by law to sell or dispense prescription drugs. The search warrant was issued, reciting that there was probable cause to believe that prescription drugs had been dispensed by persons not qualified to dispense them and without a valid prescription, and that prescription drugs, with file records indicating who had purchased various prescription drugs, were located on appellant's premises. The search warrant ordered an immediate search for this property, i. e., prescription drugs and the file records.

Pursuant to the search warrant, officers searched appellant's premises and found Prednisolone, together with many other drugs of various kinds, including the capsules that form the basis of the instant action. These capsules were later identified by the State as containing a mixture of amobarbital and secobarbital, which is manufactured under the trade name of Tuinal.

Appellant moved to suppress the evidence obtained under the search warrant in this case and also in a related case, State v. Kellogg, which involved the drug Prednisolone. In the related case, the district court ruled that I.C. § 37-2210, which makes the unauthorized dispensing of Prednisolone a criminal offense, was unconstitutional. In the instant case appellant argues that the search warrant was invalid because it was based on a showing that appellant had dispensed Prednisolone, and since the district court held I.C. § 37-2210 to be unconstitutional there was no probable cause to believe that a criminal offense had been committed.

This court's decision in the related case, State v. Kellogg, 98 Idaho 541, 568 P.2d 514 (1977), which reversed the district court's judgment and upheld the constitutionality of I.C. § 37-2210, disposes of appellant's argument. Since the statute making the unauthorized dispensing of Prednisolone a criminal offense is not unconstitutional, there was probable cause to support the search warrant which resulted in the discovery of the capsules at issue. Moreover, the search warrant satisfies all the legal requisites set forth in I.C. § 19-4401, et seq., and I.C.R. 41. Cf. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970). Consequently, the district court properly denied appellant's motion to suppress the capsules.

Next appellant contends that his conviction must be reversed because the State failed to allege or prove that he acquired the capsules after the effective date of I.C. § 37-2732(c)(2), the statute under which he was convicted. That statute provides in relevant part:

"It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription . . ., or except as otherwise authorized by this act."

In support of his contention, appellant argues that the above statute was not intended to prohibit the continued possession of substances obtained prior to the effective date of the statute; and that if I.C. § 37-2732(c)(2) is interpreted otherwise, it amounts to an unwarranted retroactive application of the statute. Appellant also argues that if I.C. § 37-2732(c)(2) applies to substances obtained before that statute's effective date, it is unconstitutional because it deprives persons of their property without just compensation. Thus, it is appellant's theory that if he obtained the capsules prior to the effective date of I.C. § 37-2732(c), he has a vested right to keep them without liability for criminal prosecution.

Appellant's argument raises two primary issues: (1) Is I.C. § 37-2732(c) applicable to controlled substances which were acquired prior to the effective date of that statute? (2) If so, is the statute constitutional? For the reasons discussed below, we answer both questions in the affirmative.

I.C. § 37-2732(c) is part of the Uniform Controlled Substances Act (hereafter "Act") which became effective in Idaho on May 1, 1971. 1971 Idaho Sess.Laws Ch. 215, sec. 4, p. 969. Neither I.C. § 37-2732(c) nor any other provision of the Act distinguishes between controlled substances acquired prior to the Act's effective date and controlled substances acquired after that date. Pursuant to I.C. § 37-2732(c), Possession of any controlled substance on or after the effective date of the Act constitutes a criminal offense, except under certain specified conditions, e. g., possession pursuant to a valid prescription, possession of a common carrier in the usual course of business, possession pursuant to registration as manufacturer, distributor, dispenser or researcher. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976); State v. Ruiz, 127 N.J.Super. 350, 317 A.2d 403 (1974); Tharps v. State, 555 P.2d 1054 (Okl.Cr.1976); Commonwealth v. DeCampli, 243 Pa.Super. 69, 364 A.2d 454 (1976); State v. Perry, 10 Wash.App. 159, 516 P.2d 1104 (1973). The applicability of I.C. § 37-2732(c) to all controlled substances, regardless of when they were obtained, is made clear by a subsequent provision in the Act regarding forfeitures. I.C. § 37-2744(a)(1), (d)(1) provides that: "All controlled substances which have been . . . acquired, Possessed or held in violation of this act" constitute contraband "and shall be summarily forfeited to the State." (Emphasis added.) Thus, under I.C. § 37-2732(c) it is immaterial when a controlled substance was acquired, for the offense is the unauthorized Possession of a controlled substance, without regard to the time the substance was acquired. Consequently, there was no burden on the State to allege or prove when the capsules at issue were acquired and appellant's objection to the State's failure to do so is without merit. Despite appellant's claim to the contrary, this interpretation of I.C. § 37-2732(c) does not constitute a retroactive application of the statute. The statute does not provide a penalty for the acquisition of controlled substances prior to the effective date of the Act. Rather, the penalty it imposes is for continuing to possess a controlled substance after the Act's effective date.

In the instant case appellant was charged with possessing a controlled substance on May 7, 1975, in violation of I.C. § 37-2732(c). At trial appellant admitted that he did not have a prescription for the capsules at issue and he did not claim any other exemption from the prohibitory provisions of the statute. Appellant's subsequent conviction was not because of anything he did, or omitted to do, prior to the effective date of I.C. § 37-2732(c), but because the jury found that after that date he continued to possess a controlled substance in violation of the Act. Consequently, appellant's conviction pursuant to I.C. § 37-2732(c) cannot be considered a retroactive application of the statute. Cf. Delaney v. Plunkett, 91 S.E. 561, 570 (Ga.1917).

We now address appellant's final argument in regard to I.C. § 37-2732(c): that the statute, by prohibiting the possession of substances acquired before its effective date, unconstitutionally deprives persons of their property without just compensation.

The issue appellant raises is whether or not a state can constitutionally prohibit the possession of a substance that was lawfully obtained before the prohibitory act. The United States Supreme Court addressed this issue in Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). Mugler concerned a Kansas statute that prohibited the manufacture and sale of intoxicating liquors within the state, with certain specified exceptions not relevant here. In Mugler the defendants, who were found guilty of violating the prohibitory liquor law, owned breweries which were lawfully engaged in the manufacture and sale of beer prior to the enactment of the prohibitory statute. In their appeal from their convictions to the United States Supreme Court, the defendants conceded that Kansas, in the exercise of its police powers, could lawfully prohibit the manufacture and sale of intoxicating...

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6 cases
  • State v. Horn
    • United States
    • Idaho Supreme Court
    • April 21, 1980 the verdict. A jury verdict will not be disturbed on appeal where there is substantial and competent evidence. State v. Kellogg, 100 Idaho 483, 600 P.2d 787 (1979); State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979). We have reviewed the record and find substantial and competent evi......
  • State v. Kellogg
    • United States
    • Idaho Supreme Court
    • November 3, 1981 persuade them, beyond a reasonable doubt, that the substance was prednisolone. As we stated in State v. Kellogg, 100 Idaho 483, 488-89, 600 P.2d 787, 792-93 (1979) (Kellogg II ): "Substance identification is an issue of fact to be decided by the jury.... Such a challenge (to the reliabil......
  • State v. Crawford
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    • Idaho Court of Appeals
    • March 21, 1986
    ...IDAHO RULES OF EVIDENCE, 704 comments (1985). The jury may then believe the testimony or reject it as unreliable. State v. Kellogg, 100 Idaho 483, 600 P.2d 787 (1979); State v. Myers, 94 Idaho 570, 494 P.2d 574 (1972). Testimony by the doctor, in addition to his opinion, overwhelmingly esta......
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    • United States
    • Idaho Court of Appeals
    • December 5, 1989
    ...on Fowler's testimony that the cookie tin was open and that he observed Chambliss placing the lid on the container. State v. Kellogg, 100 Idaho 483, 600 P.2d 787 (1979). The court's finding was appropriate in light of the fact that Fowler was in the best position to view the cookie tin beca......
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