        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       No. 75305-3-1
                      Respondent,         )
                                          )      DIVISION ONE
              v.                          )
                                          )
CARLOS TRAVOR BROWN,                      )      UNPUBLISHED OPINION
                                          )
                      Appellant.          )      FILED: July 10, 2017
                                          )
       BECKER, J. — Mere possession of a pipe, even one with a distinct shape

associated with methamphetamine use, does not establish probable cause to

arrest for possession of drug paraphernalia with intent to use it to ingest or inhale

a controlled substance. Appellant's conviction for possession of

methamphetamine discovered during a search incident to arrest is reversed.

       Deputy Troy Koster and another deputy were dispatched to a drugstore in

Lynnwood to respond to a call from the store's loss prevention officer. Dispatch

reported that a person later identified as appellant Carlos Brown was inside the

store, stuffing items into his jacket.

       Deputy Koster detained Brown on suspicion of shoplifting. Brown did not

have any unpaid merchandise with him. Deputy Koster frisked him for weapons.
No. 75305-3-1/2

He found no weapons, but he felt the shape of what he recognized as a

methamphetamine pipe. He pulled it out of Brown's pocket. Brown was placed

under arrest. Deputy Koster searched Brown Incident to arrest and discovered a

bag of methamphetamine on Brown's person.

       Brown was charged with possession of the methamphetamine. Brown

unsuccessfully moved to suppress.

      Brown stipulated to a bench trial on agreed documentary evidence. The

court convicted Brown as charged. Brown appeals and argues that the deputies

did not have probable cause for the arrest.

      A warrantless arrest must be based on probable cause. State v. Bonds

98 Wn.2d 1, 8-9,653 P.2d 1024(1982), cert. denied,464 U.S. 831 (1983).

Whether probable cause exists is a question of law that this court reviews de

novo. State v. Chamberlin 161 Wn.2d 30,40-41, 162 P.3d 389(2007).

Probable cause exists when the arresting officer is aware of facts or

circumstances, based on reasonably trustworthy information, sufficient to cause

a reasonable officer to believe a crime has been committed. State v. Gaddy, 152

Wn.2d 64, 70,93 P.3d 872(2004).

      The State contends the arresting officer had probable cause to arrest

Brown for the crime of possessing drug paraphernalia with the intent to use it, as

defined by the Snohomish County Code:

      It is unlawful for any person to use, or to possess with intent to use,
      any item of drug paraphernalia 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 into the human body a
      controlled substance in violation of this act. Any person who

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No. 75305-3-1/3

      violates this section is guilty of a misdemeanor and upon conviction
      may be imprisoned for not more than 90 days or fined not more
      than $500,000, or both.

SCC 10.48.020.

       More than mere possession of drug paraphernalia is needed to establish

probable cause for possession of drug paraphernalia with intent to use under

SCC 10.48.020. State v. Fisher, 132 Wn. App. 26, 29-30, 130 P.3d 382(2006).

In Fisher, the circumstances of the officer's encounter with the defendant

provided evidence beyond mere possession. The pipe contained burnt residue.

The defendant told the officer that the pipe was not his, but he gave no other

explanation for the pipe's presence on his person. The lack of explanation gave

the deputy reasonable grounds to disbelieve Fishers denial. Because the pipe

was on Fishers person and because it had been used to inhale a controlled

substance, it was reasonable to conclude that Fisher possessed it with the intent

to use it. Fisher 132 Wn. App. at 29-30.

       Here, Brown was stopped due to suspicion of shoplifting, a crime

unrelated to drug use. He was at a drugstore in the middle of the day. At the

suppression hearing, the State presented no evidence that he was using the pipe

or was under the influence of any drugs when the officers stopped him. There is

no evidence that Brown told the police anything about the pipe or why he had it.

      Detective Koster testified at the suppression hearing that the pipe was

"clearly" a methamphetamine pipe as felt through Brown's jacket pocket. Koster

said he knew it was a methamphetamine pipe because "I have had 10 years of




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No. 75305-3-V4

training and experience. I've seen them literally all the time. Meth and heroin

are the two biggest drugs out there right now in this area. So they are very

distinct. There's nothing else really that has the same physical characteristics.

The length, the bulbous end, the diameter on them. They're an incense burner.

That's how they are marketed and able to be sold." He testified that

methamphetamine pipes can be sold at gas stations.

       According to the State, the deputies' knowledge of the "unique nature" of

the pipe gave rise to a reasonable belief that Brown probably intended to use it to

ingest methamphetamine. But the officers did not actually testify that Brown's

pipe had only one use. In fact, Deputy Koster said the opposite—that such pipes

are marketed as incense burners and can be sold at gas stations.

      An officer's knowledge that a certain type of pipe is often used for smoking

methamphetamine is not by itself sufficient to cause a reasonable person to

believe that the person who possesses the pipe intends to use it to smoke

methamphetamine. The State's argument amounts to the unsupported

proposition that mere possession establishes intent to use.

       Because there was no evidence that Brown possessed the pipe with intent

to use it to ingest or inhale methamphetamine, the deputies did not have

probable cause for the arrest. The search incident to arrest was therefore

unlawful, and the methamphetamine found during the search should have been

suppressed.




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No. 75305-3-1/5

       Reversed.




WE CONCUR:


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