    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

                                                                                            o
STATE OF WASHINGTON,                     )      No. 69563-1-1                   e*o
                                                                                cs>
                                                                                          —4 c:
                                                                                sr        5;^°
                                                                                ac        72 —<
             Respondent,                                                        3>»       —.°
                                                                                TO
                                                                                          -n      "i

      v.                                                                         o        ^-or~


                                                                                 3C
ROY EDISON DETAMORE JR.,                 )       UNPUBLISHED OPINION
                                                                                 o         CD0"7
                                                                                     •*
                                                                                           —<o
                                                                                 C*3
             Appellant.                  )       FILED: March 10,2014                           i—i




       Verellen, J. — Roy Detamore appeals his conviction for possession of

methamphetamine, arguing that the methamphetamine was discovered as the result of

an unlawful arrest. Because the officer had probable cause to arrest Detamore for

violation of a city ordinance prohibiting possession with intent to use drug paraphernalia,

we affirm.

                                         FACTS


       On September 17, 2010, Officer Steven Harney responded to a 911 call at the

Detamore residence. Officer Harney knew that the Detamore family had "been involved

in criminal activity in the past."1 When he arrived at the house, Officer Harney saw Roy
Detamore standing in the carport. Officer Harney asked Detamore if he had any

weapons on his person. Detamore said he had a knife. Officer Harney had Detamore

put his hands on his head and then began to frisk him for the knife. During the frisk,



       1 Report of Proceedings (RP) (Dec. 8, 2011) at 6.
No. 69563-1-1/2


Officer Harney felt "a hard object... a long cylinder. . . with a bulb on the end" that he

"immediately" recognized as a methamphetamine pipe.2 Officer Harney then put
Detamore in restraints, arresting him "for drug paraphernalia."3 Officer Harney then
found and removed the knife from Detamore's pocket. In a search incident to arrest,

Officer Harney removed the pipe from Detamore's pocket and also found a second

methamphetamine pipe, a bag with a straw, a scale, and a bag of methamphetamine.

       The State charged Detamore with possession of methamphetamine. Detamore

filed a CrR 3.6 motion to suppress the fruits of the search incident to arrest, arguing that

Officer Harney lacked probable cause to arrest him. At a suppression hearing, Officer

Harney testified that he received training to recognize various types of pipes that differ

in the "way they're shaped, the way you use them to smoke the drugs."4 He described
pipes that are used to smoke only methamphetamines, as opposed to other drugs, as

"glass with a big bulb on the bottom, and you put the drugs inside the bulb and smoke

them through that."5 According to Officer Harney, his training and experience allowed

him to recognize the item in Detamore's pocket as a methamphetamine pipe without

actually seeing it or manipulating it. Officer Harney also testified that he had not

"encountered a pipe like that being used to smoke a legal substance."6
       In its order denying Detamore's suppression motion, the trial court stated:




       2id, at 8-9.
       3Id, at 11.
       4id, at 3.
       5id, at 3
       6 Id. at 4.
No. 69563-1-1/3


      This officer has specific training and experience regarding objects used to
      smoke illegal drugs. Something shaped like this pipe is unique to smoking
      methamphetamine. When he felt it, he immediately recognized it for what
      it was. Because a pipe like this serves no purpose other than to smoke
      methamphetamine, the officer had probable cause to believe the
      defendant possessed it with the intent to smoke methamphetamine. . . .
      There was enough evidence that established a fair probability that the pipe
      was there to smoke methamphetamine and the officer had probable cause
      to arrest the defendant.171

       At Detamore's first trial, the trial court found the jury deadlocked and declared a

mistrial. After a second trial, a jury found Detamore guilty as charged. The trial court

imposed a standard range sentence.

       Detamore appeals.

                                        ANALYSIS


       Probable cause to arrest exists where an officer knows of facts and

circumstances that would lead a person of reasonable caution to believe that a crime

has been or is being committed.8 The determination is based on the totality offacts and
circumstances arising in everyday life.9 The "arresting officer's special expertise in
identifying criminal behavior must be given consideration," and the officer's knowledge

need not establish guilt beyond a reasonable doubt or meet a strict legal formula.10
       Detamore first argues that his arrest was unlawful because possession of drug

paraphernalia is not a crime.11 As he correctly notes, although RCW 69.50.412 and


       7Clerk's Papers at 155-56.
       8 State v. Terrovona. 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
       9State v. Scott, 93 Wn.2d 7, 11, 604 P.2d 943 (1980).
       10 id,
      11 State v.Rose. 175Wn.2d 10, 19, 282 P.3d 1087 (2012) (use of drug
paraphernalia is a crime under RCW 69.50.412(1) and may justify arrest under
RCW 10.31.100 if committed in officer's presence but "mere possession of drug
paraphernalia is not a crime"); State v. O'Neill. 148 Wn.2d 564, 584 n.8, 62 P.3d 489
No. 69563-1-1/4


RCW 10.31.100 allow an arrest for use of drug paraphernalia in an officer's presence,

mere possession of drug paraphernalia is not a crime.12 But in its response to the
suppression motion here, the State argued that Officer Harney had probable cause to

arrest Detamore under the Everett Municipal Code provision criminalizing possession

with intent to use drug paraphernalia.13 Thus, the key inquiry for this appeal is whether
the trial court properly determined that "the officer had probable cause to believe the

defendant possessed [the pipe] with intent to smoke methamphetamine."14
       Relying on State v. Fisher, Detamore argues that his mere possession of drug

paraphernalia did not support an inference that he intended to use that paraphernalia



(2003) (mere possession of "cook spoon," absent evidence of use within officer's
presence, does not justify arrest for violation of RCW 69.50.412(1)); State v. Neelev,
113 Wn. App. 100, 107-08, 52 P.3d 539 (2002) (possession of drug paraphernalia is not
a crime under RCW 69.50.412, but use of drug paraphernalia to ingest controlled
substances is a misdemeanor); State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d
1017 (1998) ("drug paraphernalia in the duffle bag did not give cause to arrest, because
mere possession of drug paraphernalia is not a crime" under RCW 69.50.412); State v.
Lowrimore, 67 Wn. App 949, 959-60, 841 P.2d 779 (1992) (RCW 69.50.412 criminalizes
the use of drug paraphernalia but not possession alone).
       12 RCW 69.50.412 makes it a misdemeanor to "use 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." RCW 10.31.100
provides in pertinent part, "A police officer may arrest a person without a warrant for
committing a misdemeanor or gross misdemeanor only when the offense is committed
in the presence of the officer."
       13 Everett Municipal Code 10.35.020(A) provides: "It is unlawful for any person to
use, or possess with intent to use, 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 other than marijuana. Any
person who violates this section is guilty of a misdemeanor."
       14 Clerk's Papers at 156: cf. Rose, 175 Wn.2d at 19 n.3 (declining to decide
whether similar provision in Benton County Code provided valid basis for arrest
because argument was not timely raised).
No. 69563-1-1/5


for a prohibited purpose.15 In Fisher, a deputy detected an object in Fisher's pocket
during a pat-down search for weapons.16 When Fisher said it was a pipe, the deputy
removed it and recognized it as drug paraphernalia with burnt residue.17 Although
Fisher stated that the pipe was not his, the deputy arrested him for possession of drug

paraphernalia with intent to use, conduct prohibited by a county ordinance.18 The trial
court denied Fisher's motion to suppress.19 Rejecting Fisher's claim on appeal that the
officer had insufficient evidence of intent beyond mere possession to create probable

cause for the arrest, this court stated:

       The circumstances of the deputy's encounter with Fisher, however,
       provide evidence beyond mere possession. The pipe contained burnt
       residue. Fisher told the deputy that the pipe was not his but gave no other
       explanation for the pipe's presence on his person. The lack of explanation
       gave the deputy reasonable grounds to disbelieve Fisher's denial.
       Because the pipe was on Fisher's 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 in the future. The deputy had
       probable cause to arrest Fisher.[20]
       The facts here are not equivalent to Fisher. Detamore argues that Officer

Harney had no information beyond the mere fact of possession suggesting the intent to

use the pipe. He points out that Officer Harney had not yet seen the pipe or any residue

and was not investigating a drug-related offense. And Officer Harney did not report

anything in Detamore's demeanor or statements indicating that he had used drugs. But



       15 132 Wn. App. 26, 130 P.3d 382 (2006).
       16 id, at 29.
       17 id,
       18 Id.
       19 Id.
       20
            Id. at 30.
No. 69563-1-1/6


Fisher does not require any particular set of circumstances to establish probable cause

to believe a person intends to use particular drug paraphernalia for an illegal purpose.

The existence of probable cause is evaluated on a case-by-case basis.21
       And the facts and circumstances here present more than mere possession of an

item that could potentially be used as drug paraphernalia. Officer Harney testified that

he immediately recognized the pipe in Detamore's pocket without manipulating it or

removing it, and he specifically recognized the particular design of the pipe as unique to

methamphetamine pipes. Officer Harney testified that according to his training and

experience, such pipes are not "used to smoke otherdrugs" or "a legal substance."22
Based on this testimony, the trial court found, "This officer has specific training and

experience regarding objects used to smoke illegal drugs. Something shaped liked this

pipe is unique to smoking methamphetamine. When he felt it, he immediately

recognized it for what it was."23 Based on these findings, which have not been

       21 State v. Helmka. 86 Wn.2d 91, 93, 542 P.2d 115 (1975). We also reject
Detamore's suggestion that case law addressing the sufficiency of evidence offered to
support a conviction of possession of a controlled substance with intent to deliver
somehow limits the inferences available to an officer considering an arrest. See, e.g.,
State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993) (reviewing sufficiency of
evidence to convict defendant of crime beyond reasonable doubt, "Washington case law
forbids the inference of an intent to deliver based on bare possession of a controlled
substance, absent other facts and circumstances").
       22 RP (Dec. 8, 2011) at 3-4. Neither Fisher nor the cases involving suspected
drug paraphernalia used in a manner suggesting a violation of RCW 69.50.412 include
testimony or evidence that an officer's training and experience indicated that the item's
sole function is to smoke a particular type of illegal drug. Cf. Rose, 175 Wn.2d at 12
(white chalky substance in glass tube consistent with tool used to ingest drugs); O'Neill,
148 Wn.2d at 572 ("cook spoon" with granular substance "with a slickness or wet look");
Neelev, 113 Wn. App. at 103 (small Brillo pad, small pair of scissors, and lighter);
McKenna, 91 Wn. App. at 557 (pipe, cigarette wrapping papers, and small set of
scales); Lowrimore, 67 Wn. App. at 952 ("three knives, drug paraphernalia, marijuana
pipes, and a set of scales").
       23 Clerk's Papers at 155.
No. 69563-1-1/7


challenged on appeal, the trial court properly concluded that even without seeing

whether there was any residue in the pipe, Officer Harney had probable cause to

believe that Detamore intended to use the pipe to smoke methamphetamine.24 The
arrest was lawful and the trial court properly denied the suppression motion.

       We also reject Detamore's claim that the trial court's ruling "impermissibly

criminalizes the mere possession of drug paraphernalia."25 Detamore fails to present
any relevant authority or cogent argument to support his theory that a trial court's

determination in a single case as to the existence of probable cause somehow creates

a new criminal penalty for conduct not otherwise prohibited by statute.

       Affirmed.




WE CONCUR:



                                                          d%x J •




       24 Cf. Fisher. 132 Wn. App. at 28 ("The burnt residue in the pipe warranted a
belief that Fisher had an intent to use the pipe to inhale a controlled substance.").
       25 Appellant's Br. at 12.
