State v. Murphy

• Decision Date: 31 October 1983
• Docket Number: No. 18814,18814
• Citation: 674 P.2d 1220
• Parties: STATE of Utah, Plaintiff and Respondent, v. Vance MURPHY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1220

674 P.2d 1220

STATE of Utah, Plaintiff and Respondent, v. Vance MURPHY, Defendant and Appellant.

No. 18814.

Supreme Court of Utah.

Oct. 31, 1983.

Martin W. Custen, Ogden, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Appellant owned and operated a business known as "The Store" in Ogden, Utah. On August 8, 1981, an undercover agent for the Ogden City Police Department entered The Store and purchased a package of rolling papers labelled "Reefer Rollers" from a store employee. After leaving with the papers, the informant was instructed by a waiting vice officer to return to the shop and elicit an incriminating statement from the salesperson concerning the intended use of any items bought. The informant returned to the shop, engaged the salesperson in conversation and purchased a "power hitter" ¹ and some mannitol powder. ² At no time did the salesperson comment as to the intended use of the items purchased. There was no literature or advertising with any of the items purchased concerning their purported uses. Further, there was a disclaimer sign posted conspicuously which indicated that items purchased in The Store were not intended to be used for illegal purposes. At no time during these transactions was appellant present in the shop.

Based on the purchases of these three items, appellant was charged with delivering drug paraphernalia under § 57-37a-5(2) of the Utah Drug Paraphernalia Act (U.D.P.A.). ³

The entire case presented by the prosecution at trial consisted of the testimony of two individuals: (1) the undercover agent, who testified as to the sales transaction and as to her opinion of the uses of the three items; and (2) a detective with the Narcotics Division of the Ogden City Police Department, who testified as to his opinion as to the uses of the items purchased. Both witnesses agreed that each of the purchased items had legitimate uses. Based on this testimony, appellant was convicted of violating the Utah Drug Paraphernalia Act. We reverse.

The U.D.P.A. is patterned closely after the Model Drug Paraphernalia Act (Model Act), drafted by the Drug Enforcement Administration of the U.S. Department of Justice. The Model Act and its progeny were designed to overcome the constitutional infirmities that plagued early "head shop" legislation. ⁴ On the whole, that effort has proved successful.

Much of the doubt as to the constitutionality of drug paraphernalia laws was laid to rest as a result of the decision of the United States Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. ⁵ In that case, a pre-enforcement challenge to the constitutionality of a head shop ordinance, the Court held that the ordinance, which is much less detailed than the statute now before us, was not so facially overbroad or vague as to offend the Constitution. In so doing, the Court outlined a method for analyzing such facial challenges:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.

455 U.S. at 494-95, 102 S.Ct. at 1191.

The success in drafting the Model Act to avoid constitutional problems is evidenced by the fact that the courts in post-Flipside cases have uniformly concluded that, under the Flipside guidelines, facial challenges to the constitutionality of statutes or ordinances patterned after the Model Act must fail, ⁶ reasoning that the enactments neither reach a substantial amount of constitutionally protected conduct nor are impermissibly vague in all of their applications. Further, the U.S. Supreme Court has recently denied certiorari in at least two circuit court decisions upholding the facial validity of the Model Act progeny. ⁷ Finally, the Sixth Circuit, which prior to Flipside had struck down an ordinance based on the Model Act on constitutional grounds, ⁸ has concluded that "the mandate of the Supreme Court is clear" ⁹ and has reluctantly joined the other circuits in upholding the progeny of the Model Act.

As to the U.D.P.A., legislative enactments are accorded a presumption of validity. We will not strike down a legislative act unless that act is clearly in conflict with the higher law as set forth in the Constitution. ¹⁰ Statutes similar or identical to the U.D.P.A. have uniformly been held to be facially constitutional in extensive and well-reasoned opinions. ¹¹ Since we agree with the reasoning of those courts, we uphold the facial validity of the U.D.P.A. ¹² and confine our discussion to the problem of specific enforcement in light of the rationale for upholding the facial validity.

To date, the overwhelming majority of cases interpreting the Model Act have been pre-enforcement facial challenges. Only a few courts have attempted to interpret and apply the law in specific criminal proceedings, ¹³ as we must do here.

In order to convict a person under the U.D.P.A., the statute must be read as a whole, and each section must be read in light of the others. Sections 58-37a-3, -4, and -5 are the relevant sections for the purposes of this case.

Sections -3 and -4 are definitional. In § -3, drug paraphernalia is defined as anything "used or intended for use" in manufacturing or ingesting controlled substances. A list of examples follows, with each example restating the requirement that the named object be "used or intended for use" to manufacture or ingest controlled substances. The list concludes with a catchall category of "objects used or intended for use to inject, inhale or otherwise introduce [controlled substances] into the human body ...," followed by another list of exemplary items, such as pipes, roach clips and bongs.

It has been uniformly held that the intent referred to throughout § -3 is that of the person alleged to have violated the statute. ¹⁴ That intent need not be proved by direct evidence. ¹⁵ It may be inferred from the actions of the defendant or from surrounding circumstances. ¹⁶

It has further been generally held that the exemplar items are not paraphernalia per se but only become so when coupled with the seller's intent that they be so used. ¹⁷ Thus, if a paper clip is sold by a person intending that it be used to hold a roach, that clip is paraphernalia, even though traditionally it would not be so used. Similarly, if a roach clip is sold by a person intending that it be used as a tie clip, that item is not drug paraphernalia.

Finally, this scienter requirement also mitigates any vagueness ¹⁸ in the law with respect to the inadequacy of notice to the dealer that his conduct is proscribed. ¹⁹

Section -4 lists 13 factors that the trier of fact, in addition to all other logically relevant factors, should consider "in determining when an object is drug paraphernalia." This section provides further guidelines to law enforcement personnel and to the trier of fact as to what items constitute drug paraphernalia and, in so doing, lessens the danger of arbitrary enforcement. It also gives individuals further concrete notice as to what conduct is proscribed. ²⁰

There is no question that the actions of third parties ²¹ or the testimony of third parties ²² may be relevant with several of these factors in determining what is drug paraphernalia. However, this evidence alone would not be sufficient to convict an individual and is in fact only one step in the prosecutorial scheme. If third-party actions or testimony tend to indicate that an item is drug paraphernalia, the focus of inquiry must then shift to the intent of the individual charged. ²³ Conviction thus cannot be had on the basis of transferred intent or guilt by association.

Section -5 defines the unlawful acts that constitute substantive criminal offenses. Appellant was convicted under § 58-37a-5(2), which states:

It is unlawful for any person to deliver, possess with intent to deliver or manufacture with intent to deliver any drug paraphernalia knowing that the drug paraphernalia will be used 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 a controlled substance into the human body in violation of this act. [Emphasis added.]

Construing the statute as a whole then, before a valid conviction of appellant can be had under § 58-37a-5(2) the State must prove each of the following elements beyond a reasonable doubt: (1) the defendant delivered (sold) certain objects or items; (2) the objects were drug paraphernalia as defined by the statute (in other words, the defendant delivered (sold) the items intending that they be used for the production or consumption of controlled substances); and (3) the defendant delivered (sold) the items knowing that the buyer of the item would thereafter use them with controlled substances. It is on this last element that the State has manifestly failed to carry its burden.

The Model Act proscribes a person's conduct if he knows or reasonably should know that the drug paraphernalia will be used with controlled substances. In interpreting this language the court in Delaware Accessories Trade Ass'n v. Gebelein ²⁴ said that "even the illicit dealer, however, is not held legally responsible ... for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer's purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue." ²⁵

Utah has modified the...