2005-299, STATE OF NH v. SMOKE SIGNALS PIPE & TOBACCO SHOP, LLC

The defendant, Smoke Signals Pipe & Tobacco Shop, LLC

for the defendant. Sisti Law Offices, of Chichester (Jonathan Cohen on the brief and orally),

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

SMOKE SIGNALS PIPE & TOBACCO SHOP, LLC

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-299 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as material . . . .” p. 2 of smaller items referred to as ‘one hitters’ that are used for smoking bubblers, small glass pipes that contain a water chamber filter, and a number quantity of chillums.” of water pipes,” (2) “a quantity of carburetor pipes,” (3) “a metal pipe” and (4) “a knowingly offered for retail sale drug paraphernalia, including: (1) “a quantity

number of small glass pipes, so-called carburetor pipes, several so-called

sale of drug paraphernalia. The informations alleged that Smoke Signals

could not sell: originally seized. The superior court found that the items returned included “a

Signals was charged by information with four class B misdemeanor counts of seized several items purported to be drug paraphernalia. Thereafter, Smoke A few months later, police conducted a search of Smoke Signals and

prohibited from selling. The agreement listed six items that Smoke Signals Signals entered into an agreement regarding which items Smoke Signals was The State returned to Smoke Signals many of the items that had been sentenced to a suspended fine. As part of the guilty plea, the State and Smoke 6. Klear Detoxifier formula and other detoxification products.

5. Concealed pipes such as plastic highlighter pens. and bubblers. 4. Small wooden pipes without stems.

such pipe. component parts which are commonly utilized to construct diameter or non-traditional metal pipes or kits and or 3. Metal pipes or Ceramic Pipes with a bowl less than ½ inch in

a guilty plea to a single charge of selling drug paraphernalia, and was cigarettes. 2. Dugouts with a ceramic cigarette or otherwise disguised as

designed for tube construction water pipes excluding hookahs 1. Tube construction water pipes and insert tubes and bowls

contrary to RSA 318-B:2 (2004). On January 26, 2004, Smoke Signals entered Signals with multiple misdemeanor-level offenses of selling drug paraphernalia In February 2002, the Strafford County Attorney’s Office charged Smoke

I. Factual Background in this case.

p. 3 the sale of drug paraphernalia with respect to the items in evidence

superior court denied the motion. In its order, the court explained that neither stated:

beyond a reasonable doubt that the defendant acted knowingly in prior prosecution, the court cannot find the State has proven seized are similar to the items returned to Smoke Signals in the 3 and items similar to those items. have understood that it was free to offer for sale the items returned

State to return the glass pipes and other items seized by the police. The Smoke Signals acted knowingly in p. 3 the sale of drug paraphernalia.” The court

bases its prosecution, and where in many instances, the items

other conclusion can be reached except that [Smoke Signals] would

Smoke Signals then filed a motion asking the superior court to order the as defined by the statute, and that they were offered for sale, but also that

of the items returned to Smoke Signals after the first prosecution. Here, where the State returned some of the very items on which it charged, are similar to and virtually indistinguishable from many of the items seized in this case, and for which Smoke Signals is Signals] that were not specifically proscribed in the Agreement. No [Smoke Signals] to sell at least items that were returned to [Smoke parties attempted to narrow the broad statutory definition, to allow necessary for the State to prove “not only that the items are drug paraphernalia paraphernalia under the broad statutory definition, it acknowledged that it was of the items forming the basis of the present charges could be considered drug Although the court noted that there was “strong evidence” that a number

January 26, 2004, following the first prosecution. Further, many

above, and the record of the proceedings in that case, that the It is apparent from the prior prosecution, the Agreement referred to

in RSA 318-B:1, X-a, the superior court stated: earlier prosecution. After recognizing the “unusually broad” definition of drug paraphernalia court explained that its decision was based, in part, upon the outcome of the

metal pipe, are the identical items returned to Smoke Signals on certain glass water pipes, glass so-called carburetor pipes and a in this case, and as to which Smoke Signals is charged, namely, The court finds from the evidence that several of the items seized

was acquitted on all four charges. In its findings and rulings, the superior Following a bench trial held on January 12 and 13, 2005, Smoke Signals p. 4 However, they part company in their assessment of the effects of

issue is not preserved for appellate review because “the question whether items

should not be remanded to the superior court for further consideration.

contraband under RSA 595-A:6 and

unconstitutionally vague. In its memorandum, the State suggests that this contraband subject to forfeiture. in because the only statute implicated is RSA 318-B:1, X-a, which it argues is RSA 595-A:6 (2001), and proceeded to determine whether the property was Smoke Signals asserts that the property is not contraband under RSA 595-A:6 protection and return of property seized for possible use at trial set forth in

In their supplemental memoranda, both parties agree that this case

RSA 595-A:6, and the Cohen. nor the court addressed whether the property should be returned pursuant to decide the case on the existing record, the property is (2) Whether, if the court decides not to remand the case and to

Cohen; and for reconsideration and further findings in light of our decision (1) Whether, the case should be remanded to the superior court We observed that the property was subject to the procedures governing the

parties to submit supplemental memoranda addressing the following issues: party addressed RSA 595-A:6 or Cohen in its brief. Therefore, we ordered the rendered its decision on the motion to return property. On appeal, neither an expert witness during the trial; and (4) by refusing to return the property. Cohen decision was issued well after the superior court

In this case, during the proceedings in superior court, neither the parties

upheld a trial court’s denial of the defendant’s motion for return of property. Recently, in State v. Cohen, 154 N.H. ___, 907 A.2d 983 (2006), we presented during the bench trial, “the items seized . . . fact, drug paraphernalia.” The court found that based upon the evidence evidence presented at the bench trial; (3) by recognizing Detective Kyle True as “conclusory effect on [its] determination of whether the items seized . . . are, in the items it sought to have returned were drug paraphernalia based upon the failing to find RSA 318-B:1, X-a unconstitutionally vague; (2) by finding that On appeal, Smoke Signals argues that the superior court erred: (1) by

and, therefore, contraband.” It is this order that Smoke Signals appeals.

paraphernalia nor the plea agreement in the earlier prosecution had any the fact that Smoke Signals was acquitted of all charges of selling drug officials. p. 5 statutory scheme includes comprehensive guidelines to govern law enforcement

enforcement of the law. the judiciary the proper guidance to guard against arbitrary and inconsistent

vagueness challenge.

pursuant to RSA 595-A:6 and

of what objects are drug paraphernalia and fails to give law enforcement and

upheld against vagueness challenges in other contexts. Further, the State

whether it is mounting a facial challenge to the statute or an “as applied” (2006). Smoke Signals does not specify – in its brief or anywhere else – unwarranted. State v. MacElman, 154 N.H. ___, ___, 910 A.2d 1267, 1271 a fundamental right, a facial attack on the challenged statutory scheme is B:1, X-a. Next, we will determine whether or not the property is contraband First, we note that where a defendant’s vagueness claim does not involve

See RSA 318-B:2, IV (2004). in ingesting a controlled substance does not put an ordinary person on notice

statute defining drug paraphernalia as objects “customarily intended for use” under both the State and Federal Constitutions because the section of the intended for use” is straightforward, and that similar phrases have been Justices, 121 N.H. 542 (1981). The State argues that the phrase “customarily our decision in earlier version of the same statute is constitutional. See Opinion of the In rebuttal, the State emphasizes that this court previously ruled that an

address Smoke Signals’ argument regarding the constitutionality of RSA 318-

Smoke Signals argues that RSA 318-B:1, X-a is unconstitutionally vague

A. Constitutionality of RSA 318-B:1, X-a should remand this case to the superior court for reconsideration in light of Moreover, after giving the parties ample opportunity to persuade us whether we Cohen. hearing and a court order. Thus, the issue is preserved for appellate review.

analysis from that set forth in RSA 595-A:6 and We now proceed to address the main issues in this case. First, we will

appellate review. Accordingly, we conclude that the issue is now sufficiently developed for whether the property is contraband under RSA 595-A:6 and Cohen. remanded because the existing record is sufficient to address the issue of

Cohen, the State took the position that the case should not be

whether or not the property at issue is contraband was the subject of both a

Even though the parties and the superior court utilized a different

never raised below.” meeting a constitutional definition of ‘drug paraphernalia’ are contraband was in violation of this chapter. It includes, but is not limited to:

p. 6 otherwise introducing into the human body a controlled substance

customarily intended for use in . . . ingesting, inhaling, or or punctured metal bowls. even encourages arbitrary and discriminatory enforcement.

cocaine, hashish, or hashish oil into the human body, such as: use in ingesting, inhaling, or otherwise introducing marijuana,

(4) Smoking and carburetion masks. (3) Carburetion tubes and devices. (2) Water pipes.

statute. materials of any kind which are used or intended for use or with or without screens, permanent screens, hashish heads, fundamental or First Amendment right and review its facial challenge to the opportunity to understand what conduct it prohibits; or (2) it authorizes or (1) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes

pertinent part:

(k) Objects used or intended for use or customarily intended for it could have been drafted with greater precision.” . . . .

“Drug paraphernalia” means all equipment, products and case, we will assume, without deciding, that Smoke Signals has articulated a reasons: (1) it fails to provide people of ordinary intelligence a reasonable

RSA 318-B:1, X-a defines “drug paraphernalia,” and provides in

exactness is not required in a penal statute, nor is a law invalid merely because favoring a statute’s constitutionality. Id. In addition, “[m]athematical vagueness bears a heavy burden of proof in view of the strong presumption N.H. at ___, 910 A.2d at 1271. A party challenging a statute as void for

State’s failure to object that a fundamental right has been implicated in this A statute can be impermissibly vague for either of two independent challenge. The State has raised no objection to this approach. In light of the utilizes the analysis we have adopted for assessing a facial vagueness only. Id. at 232-33. State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance (2006). We first address Smoke Signals’ claim under the State Constitution, which we review de novo. State v. Hall, 154 N.H. ___, ___, 908 A.2d 766, 768 The issue before us on appeal presents a question of constitutional law,

See MacElman, 154 N.H. at ___, 910 A.2d at 1271.

applies to the facts of the particular case). However, in its brief Smoke Signals facial attack is unwarranted, we examine the statutory scheme only as it and chillums – all of which Smoke Signals was indicted for selling. p. 7 violated. Notably, the list includes water pipes, carburetor pipes, metal pipes,

list provides further guidance in understanding how the statute may be

nonexhaustive list of items that may be considered drug paraphernalia. The

substances into the human body. The use of the word “customarily” in the or customarily intended for use to, among other things, introduce controlled another to be transferred to the accused. We disagree and find that the terms Objects are considered “drug paraphernalia” if they are used, intended for use Smoke Signals also argues that RSA 318-B:1, X-a permits the intent of

she could not understand. diminishes the risk of an individual being prosecuted for conduct that he or Dist. Ct. App. 1982). In addition, RSA 318-B:1, X-a(a)-(k) contains a is proscribed. constitutional validity question.” State v. J.H.B., 415 So. 2d 814, 815 (Fla. statute does not provide adequate notice to citizens regarding the conduct that presents an evidentiary question rather than a have previously held that a scienter requirement ameliorates the concern that a

version of the statute provides ample notice of the objects it proscribes. vague. We conclude that it does not. Examining the phrase at issue in context, we observe that the current

material element of the offense, the “knowingly” scienter requirement

MacElman, 154 N.H. at ___, 910 A.2d at 1272. Applied to each

present version of RSA 318-B:1, X-a includes an element of specific intent. We Like the version of the statute considered in Opinion of the Justices, the

phrase “customarily intended for use” renders the statute unconstitutionally legislature in 1989. See Laws 1989, 361:1. Thus, we must determine if the that the phrase “customarily intended for use” was added to the statute by the same as the version of the statute considered in Opinion of the Justices, except The present version of RSA 318-B:1, X-a is in all relevant respects the

person on notice that his conduct may be illegal.” Id. at 545. of ‘paraphernalia’ includes an element of specific intent, [and] puts the average held that the statute was not unconstitutionally vague because “the definition constitutionality of an earlier version of RSA 318-B:1, X-a. In that case, we In Opinion of the Justices, 121 N.H. at 543-46, we considered the

(11) Ice pipes or chillers. (10) Bongs. (9) Chillums. (8) Air-driven pipes. (7) Electric pipes. (6) Carburetor pipes. (5) Chamber pipes. the object is intended for use as drug paraphernalia; p. 8 violation of this chapter shall not prevent a finding that 8

owner, or of anyone in control of the object, as to a direct

(i) National and local advertising concerning its use; explain or depict its use; (h) Descriptive materials accompanying the object which concerning its use; (g) Instructions, oral or written, provided with the object RSA 318-B:2, IV provides:

provides comprehensive guidelines to govern law enforcement. Specifically, relating to any controlled substance;

facilitate a violation of this chapter; the innocence of an to persons whom he knows intend to use the object to owner, or of anyone in control of the object, to deliver it (f) Direct or circumstantial evidence of the intent of an

all other logically relevant factors, the following: the object; (e) The existence of any residue of controlled substances on (d) The proximity of any residue of controlled substances; violations.” violation of this chapter; (c) The proximity of the object, in time and space, to a direct

arbitrary and discriminatory enforcement, because the statutory scheme control of the object, under any state or federal law

(b) Prior convictions, if any, of an owner, or of anyone in object concerning its use; (a) Statements by an owner or by anyone in control of the

chapter, a court or other authority should consider, in addition to In determining whether an object is drug paraphernalia under this

paraphernalia, is the person charged with one of the [statute’s] substantive

For similar reasons, the statute does not authorize or encourage

See MacElman, 154 N.H. at ___, 910 A.2d at 1271. understand what conduct it prohibits, and thus is not impermissibly vague. a provides people of ordinary intelligence a reasonable opportunity to statute applies to the accused). Accordingly, we conclude that RSA 318-B:1, X- 834, 844 (D. Md. 1980) (holding that the term “intended for use” in a similar

Mid-Atlantic Accessories Trade Ass’n v. Maryland, 500 F. Supp.

design it for use, or intend it for use with drugs in order for it to be drug the Justices, 121 N.H. at 545. Rather, “[t]he person who must use an item, “to be found criminally liable based on the intentions of another.” Opinion of “intended for use” and “customarily intended for use” do not permit a person warrant or otherwise coming into the hands of the police shall be

contraband. . . . All other property seized in execution of a search

RSA 5 p. 9 95-A:6, which states that: protection and return of property seized for possible use at trial set forth in

Signals in violation of both state and federal law. any . . . property of evidential value, not constituting except for good cause shown, order returned to the rightful owners the court . . . shall, upon notice to a defendant and hearing, and Upon application by a prosecutor, defendant, or civil claimants, Constitution as we do under the State Constitution. circumstances. Therefore, we reach the same result under the Federal commission of a crime. The State argues that the items are contraband it no greater protection than does the State Constitution under these The property at issue is subject to the procedures governing the

whether the property at issue is contraband under RSA 5 p. 9 95-A:6 and (2004); see also 21 U.S.C. § 863(a) (2000). withstands constitutional scrutiny. See RSA 318-B:2, II, II-a because they were all manufactured by other parties and delivered to Smoke (1996). The State also alleges that the items constitute derivative contraband 1226 (3d Cir. 1995) (Sarokin, J., dissenting), cert. denied, 516 U.S. 1111 enforcement agents in particular.” See United States v. Baird, 63 F.3d 1213, because all of the items are “dangerous to society in general or to law

illegal purpose, nor have they been used as a tool or instrumentality in the under the State Constitution, we conclude that the Federal Constitution offers never been used by anyone to ingest a controlled substance or for any other Smoke Signals contends that the items are not contraband because they have

Having found that RSA 318-B:1, X-a is constitutional, we now consider guidance to protect against arbitrary or discriminatory enforcement, and thus B. Is the Property Contraband

___, ___, p. 9 910 A.2d 1203, 1208 (2006).

Having evaluated and rejected Smoke Signals’ vagueness challenge

We find that the statute – when viewed as a whole – provides sufficient

(m) Expert testimony concerning its use. legitimate uses for the object in the community; and drug paraphernalia and the existence and scope of other (l) Whether the object is customarily intended for use as the objects to the total sales of the business enterprise; (k) Direct or circumstantial evidence of the ratio of sales of (j) The manner in which the object is displayed for sale; the items were manufactured by other parties and delivered (and sold) to

paraphernalia, however, it goes on to argue that “[i]t is . . . evident that all of

several hundred State misdemeanors, or various federal felonies.” manufacture of drug paraphernalia is prohibited.

contraband.” protected work was illegally copied – and, accordingly, may be derivative instrumentalities of the commission of a crime – the means by which another’s Signals did not manufacture the items allegedly constituting drug (2004); see also 21 U.S.C. § 863(a) (2000). The State concedes that Smoke himself did not produce the compact discs, “whoever did so likely committed See RSA 318-B:2, II, II-a State contends that under both New Hampshire and federal law the sale and counterfeit compact discs in Cohen were contraband.” As outlined above, the that “drug paraphernalia is contraband for the same reasons that the commission of a crime.” The State argues that based on the existing record we should conclude district court denied his motion. Id.

the express written consent of their owners or performers, 907 A.2d at 986. Further, we observed that “[t]he discs themselves may be the counts of transferring, with intent to sell, copies of recordings made without Id. at ___,

that the discs were derivative contraband because even though the defendant statutes.” Id. at ___, 907 A.2d at 985-86 (emphasis added). We also concluded discs in violation of copyright laws is illegal under both State and federal finding that the discs were contraband per se because “the creation of compact act,” and includes “tools or instrumentalities that a wrongdoer has used in the Id. We upheld the district court’s ruling, The defendant moved to have the compact discs returned to him, and the

(Supp. 2006), he was never convicted of any of the charges. Id.

A.2d at 984. Although the defendant was charged with several misdemeanor which the defendant had offered for sale at his record store. Id. at ___, 907 In Cohen, the property at issue was several hundred compact discs,

of the court or justice, and in accordance with due process of law. Id. at ___, 907 A.2d at 985-86 (quotations omitted). sale or destruction as the public interest requires, in the discretion whose possession becomes unlawful when it is used in committing an illegal ___, 907 A.2d at 985 (quotation omitted). Derivative contraband is “[p]roperty “[p]roperty whose possession is unlawful regardless of how it is used.” Id. at derivative contraband. Id. at ___, 907 A.2d at 985-86. Contraband per se is materials may fall into one – or both – of two categories: contraband per se and Cohen, 154 N.H. at ___, 907 A.2d at 985-88. We explained that contraband not property is contraband under the statute and thus subject to forfeiture. In Cohen, we set forth a comprehensive test for determining whether or

the court or justice orders, which may include forfeiture and either returned to the owner of the property, or shall be disposed of as and forfeiture upon the conviction of a person for such violation.” 21 U.S.C. p. 11 any violation of subsection (a) of [21 U.S.C § 863] shall be subject to seizure

State failed to meet at trial. 11

controlled substances.

intended . . . for use” with such substances.

statute. Under 21 U.S.C. § 863(c) (2000): “Any drug paraphernalia involved in

Signals acted knowingly – a burden that the superior court judge found the

cocaine freebase kits, and certain kinds of pipes” have no other use than with is a conviction. Here, Smoke Signals was acquitted of all pending charges. commission of a crime. § 863(c). Therefore, according to federal law, no forfeiture can occur until there

“designed for use” with controlled substances, and items “primarily with illegal drugs.” establish that the defendant knew that the items at issue are likely to be used The State’s argument is also inconsistent with the federal forfeiture

who sells or transports them.”

constitute drug paraphernalia under federal law if there was proof that Smoke under federal law from the time they were manufactured. They would only respects to 21 U.S.C. § 863). The court said that some items, “including bongs, inconsistent with the State’s argument that these items became contraband with controlled substances. The holding in regardless of whether Smoke Signals itself used it in the Posters ‘n’ Things is thus None of the items seized in this case were alleged to be “designed for use”

paraphernalia statute for two categories of drug paraphernalia: items Id. at 524.

for use” with controlled substances, the court held that the prosecution “must the items seized in this case. This is clear from Id. However, for items “primarily intended . . . “constitute drug paraphernalia irrespective of the knowledge or intent of one

previous version of the drug paraphernalia statute identical in all relevant commit a crime, . . . the drug paraphernalia here is contraband See id. at 518 (interpreting a

States considered the scienter requirement under the federal drug United States not been used as a tool or instrumentality of [, 511 U.S. 513 (1994), wherein the Supreme Court of the United

moment the discs were created, they were contraband. The same is not true of We are not persuaded by the State’s argument. In Cohen, from the

depend on whether the defendant in that case had used them to . . . Just as the status of the compact discs in Cohen did not of any crime by any wrongdoer,” . . . is . . . incorrect.

[Smoke Signals’] claim that “the property at issue in this case has

State asserts that: [Smoke Signals] . . . in violation of both state and federal law.” Further, the p. 12 12

reject the State’s arguments and reverse the decision of the superior court.

of the items returned to Smoke Signals after the first prosecution.” We thus for, as the superior court found, “items virtually indistinguishable from many contraband. Then, the State reversed course and prosecuted Smoke Signals

Presumably at that time, the State did not consider the items it returned to be

also returned to Smoke Signals certain glass pipes and other items. that there were six specific categories of items that it could not sell. The State conduct in this case. In January 2004, the State made clear to Smoke Signals BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

apparently always have been – contraband, is inconsistent with its own Finally, the State’s argument that the items at issue are now – and