Tiplick v. State

CourtSupreme Court of Indiana
Citation43 N.E.3d 1259
Docket NumberNo. 49S04–1505–CR–287.,49S04–1505–CR–287.
PartiesChristopher TIPLICK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date07 October 2015

43 N.E.3d 1259

Christopher TIPLICK, Appellant (Defendant below)
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 49S04–1505–CR–287.

Supreme Court of Indiana.

Oct. 7, 2015.


43 N.E.3d 1260

Mark W. Rutherford, Stephen R. Donham, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A04–1312–CR–617

MASSA, Justice.

Christopher Tiplick faces criminal charges for possessing, selling, and dealing

43 N.E.3d 1261

in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in look-alike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy's Emergency Rule 12–493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick's motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11–related charges, necessitating dismissal of those counts.

Facts and Procedural History

Synthetic cannabinoids, also known as “spice,” are compounds designed to mimic the psychoactive properties of marijuana, first reported in the United States in 2008. See Schedules of Controlled Substances: Temporary Placement of Three Synthetic Cannabinoids Into Schedule I, 78 Fed.Reg. 28,735 –39 (May 16, 2013) (to be codified at 21 C.F.R. pt. 1308.11(h)(9)–(11) ). Regulation of “spice” is a particularly challenging pursuit, as minor variants in chemical structure can place the substances beyond the reach of criminal statutes without diminishing their psychotropic effects. Id . Our General Assembly made two significant revisions to our criminal code in 2012, in an attempt to match pace with the evolving chemistry. First, Indiana Code section 35–31.5–2–321 (“Section 321”) re-defined the term “synthetic drug” to include a broad range of compounds and chemical analogs, including “any compound determined to be a synthetic drug by rule adopted under IC 25–26–13–4.1.” 2012 Ind. Acts 1795–99. Second, the Assembly added Indiana Code section 25–26–13–4.1 (“Section 4.1”), which empowered the Indiana Board of Pharmacy to adopt emergency rules declaring additional compounds to be a “synthetic drug,” which would become effective thirty days after publication in the Indiana Register and would remain in effect until June of the following year. 2012 Ind. Acts 1134–35.

On August 15, 2012, pursuant to their authority under Section 4.1, the Pharmacy Board filed Emergency Rule 12–493(E) with the Indiana Register (the “Emergency Rule”), classifying thirteen additional compounds as “synthetics,” including “XLR11 [ (1–(5–fluoropentyl)indol–3–yl)–(2,2,3,3–tetramethylcyclopropyl)methanone]” Ind. Reg. LSA Doc. No. 12–493(E) (August 15, 2015) (see http://www.in.gov/legislative/iac/20120822–IR–856120493ERA.xml.html). The Emergency Rule thus became effective on September 15, 2012.

In October of 2012, Tiplick was charged with eighteen drug-related counts: Counts I through VI and XVI allege dealing and conspiracy to commit dealing in look-alike substances, while Counts VII through XV and XVII through XVIII allege dealing, conspiracy to commit dealing, and possession of synthetic drugs. The charging information alleges several purchases by undercover police officers at Tiplick's stores (all named “Smoke Shop”), “on or about September 20, 2012,” “on or about October 9, 2012,” and “on or about October 10, 2012.” App. at 19–24. The information itself alleged that Tiplick's stores sold a “synthetic drug a/k/a spice” without allegations of the precise compound, but the probable cause affidavit accompanying the information asserted that the packages purchased contained “XLR11 [ (1–(5–flouropentyl)indol–3–yl)–(2,2,3,3–tetramethylcyclopropyl)methanone].”

43 N.E.3d 1262

1 App. at 19–36. Neither document mentioned the Emergency Rule.

Tiplick filed a motion to dismiss all charges, claiming the information failed to state the alleged offenses with sufficient certainty, the statutory definition of “synthetic drug” and statutes criminalizing “look-alike” substances were void for vagueness, and the General Assembly could not delegate to the Pharmacy Board the power to declare new synthetic drugs illegal via emergency rule. The trial court disagreed on all points and denied the motion, but certified its order for interlocutory appeal.

A divided panel of our Court of Appeals reversed and dismissed the synthetic drug charges. Tiplick v. State, 25 N.E.3d 190, 196 (Ind.Ct.App.2015). The majority concluded that the provision allowing for the creation of the Emergency Rule rendered the statute unconstitutionally vague, necessitating a “Where's Waldo” approach to determining which substances are classified as “synthetic drugs” under Section 321, and that holding a citizen of ordinary intelligence to such a requirement would be “ludicrous.” Id. at 195–96. But the dissent found the statutory scheme created a “finite number of locations” to investigate when determining the legality of the sale of XLR11, and was thus constitutionally permissible. Id. at 196–97 (Bailey, J., dissenting).

We granted the State's petition to transfer, vacating the opinion below. Tiplick v. State, 30 N.E.3d 1229 (Ind.2015) (table); Ind. Appellate Rule 58(A).

Standard of Review

“It is well established that a trial court's denial of a motion to dismiss is reviewed only for an abuse of discretion.” Study v. State, 24 N.E.3d 947, 950 (Ind.2015). To the extent we consider matters of law, including constitutional questions, our review is de novo, “but all statutes are presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute in favor of constitutionality.” Dep't of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 587 (Ind.2014) (internal quotations omitted).

I. The Synthetic Drug Statute Is Not Unconstitutionally Vague.

“Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions.” Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). To that end, there are two independent causes to invalidate a statute on vagueness grounds: (1) the statute does not provide “notice enabling ordinary people to understand the conduct that it prohibits”; and (2) the statute potentially “authorizes or encourages arbitrary or discriminatory enforcement.”2 Id. Although Tiplick asserts that Sections 321 and 4.1 fail both tests, his briefing does not substantively argue that the statutes permit arbitrary or discriminatory enforcement. Moreover, we do not find sufficient cause to believe these statutes so allow. Despite

43 N.E.3d 1263

its cumbersome length and detail, Section 321 is ultimately just a discrete list of chemical formulas and analogs, supplemented with additional chemicals by Section 4.1's emergency rules. Such a list does not allow for any interpretation by law enforcement which would render it vulnerable to subjective views. See Kolender v. Lawson, 461 U.S. 352, 354–58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (invalidating California Penal Code section 647(e) on vagueness grounds, finding that requiring an individual to provide “credible and reliable” identification when stopped by police “vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute”). Accordingly, we consider in detail only his first grounds for a constitutional vagueness challenge: whether Sections 321 and 4.1 give adequate notice to ordinary people of the proscribed conduct.

Tiplick makes two overlapping contentions in support of his vagueness claim. First, he asserts that the sheer complexity of Section 321 is beyond the grasp of an ordinary person, and thus is impermissibly vague. We do not agree. Our General Assembly is attempting to regulate a field of advanced chemistry that creates synthetic cousins of naturally occurring illegal substances like marijuana. “Article 4, Section 20 instructs the General Assembly to avoid the use of technical terms to the extent that it is practicable. The novelty, complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law.” Elvers v. State, 22 N.E.3d 824, 830 (Ind.Ct.App.2014) (emphasis in original). Moreover, Tiplick may only challenge the chemical description of XLR11 on these grounds, not the entire text of Section 321. See Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.”). Thus, it may be that a person with ordinary experience and...

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