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AGO 1978 No. 26 - September 25, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

DRUGS ‑- POSSESSION OR SALE OF DRUG-PARAPHERNALIA ‑- CONSTITUTIONALITY OF PROPOSED LEGISLATION

By reason of the due process clause of Amendment XIV to the United States Constitution, as construed and applied by the courts in analogous cases involving criminal statutes prohibiting the possession of burglar tools, certain proposed legislative bills designed to prohibit the sale or possession of drug-related paraphernalia would, in all probability, be held unconstitutional if enacted in their present form.

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                                                              September 25, 1978

Honorable Ray Van Hollebeke
State Senator, 1st District
18735 53rd N.E.
Seattle, WA 98155

                                                                                                                 Cite as:  AGO 1978 No. 26

Dear Sir:

            By letter previously acknowledged you requested our opinion regarding the constitutionality of proposed legislation designed to prohibit the sale or possession of drug-related paraphernalia.  In our opinion, for the reasons set forth below, this proposed legislation as presently drafted would be unconstitutional.

                                                                     ANALYSIS

            Your question actually involves two separate items of proposed legislation, differing, however, in only one significant respect.  While what we will hereinafter refer to as Proposal 1 would apply to any person, Proposal 2 would only involve the sale of drug-related paraphernalia to, or the possession of such paraphernalia by, persons under 21 years of age.

            The first numbered section of each bill would contain a legislative finding.  In the case of Proposal 1, this finding would read as follows:

             [[Orig. Op. Page 2]]

            "The legislature finds that the use of illegal drugs constitutes a very serious threat to the welfare of the citizens of this state.  The legislature further finds that the availability of drug-related paraphernalia facilitates the use of illegal drugs.  In order to protect the public health, safety, and welfare, it is the intent of the legislature to prohibit the sale, advertisement, and possession of drug-related paraphernalia."

            In the case of Proposal 2, § 1 thereof would contain a similar legislative finding, as follows:

            "The legislature finds that the use of illegal drugs by minors constitutes a very real and dangerous health hazard to the youth of this state.  The legislature further finds that the availability of drug-related paraphernalia facilitates the use of illegal drugs.  In order to protect the public health, safety, and welfare, it is the intent of the legislature to prohibit the purchase and possession of drug-related paraphernalia by, and the sale of drug-related paraphernalia to, persons under twenty-one years of age."

            The substance of each proposal would then follow in § 2 of the respective bills.  More accurately, subsection (1) of § 2 would, in each case, contain a definition and subsection (2) a substantive prohibition in the following form:

            Proposal 1.  "Sec. 2.  (1) As used in this chapter, 'drug-related paraphernalia' shall include any article, equipment, or apparatus which could only reasonably be used for the illegal consumption or ingestion of a controlled substance as defined in chapter 69.50 RCW.

            "(2) It is unlawful for any person to exhibit, sell, display for sale, advertise for sale, offer to sell, give away, offer to give away, or possess any drug-related paraphernalia."

             [[Orig. Op. Page 3]]

            Proposal 2.  "Sec. 2.  (1) As used in this chapter, 'drug-related paraphernalia' shall include any article, equipment, or apparatus which is substantially and instrumentally connected with the illegal consumption or ingestion of a controlled substance as defined in chapter 69.50 RCW.

            "(2) It is unlawful for any person under twenty-one years of age to purchase, offer to purchase, or possess any drug-related paraphernalia."

            "(3) It is unlawful for any person to sell or offer to sell any drug-related paraphernalia to any person under twenty-one years of age."

            Finally, § 3 of each bill would impose a penalty‑-in the case of Proposal 1 a criminal penalty based upon a characterization of the offense as a misdemeanor and in the case of Proposal 2 a civil penalty ". . . of not less than $50 nor more than $500."1/

             Perhaps the most basic problem with legislation such as this is one which it shares with legislation relating to the sale or possession of burglar tools; namely, that it makes illegal the sale or possession of various articles, some of which facilitate legal as well as illegal activity.  For example a common teaspoon, like a crowbar, may reasonably be used (and, in fact, ordinarily is used) in connection with perfectly legal conduct even though the same item is one also commonly utilized, in the one case, by drug users and in the other by burglars.  Bearing this analogy in mind we will, therefore, first make resort to several cases involving the constitutionality of statutes relating to the sale or possession of burglar tools in critiquing the proposed legislation involving drug-related paraphernalia upon which you have requested our opinion.

             [[Orig. Op. Page 4]]

            We begin by noting that burglar tool statutes generally consist of proscriptions against possession of instruments or tools which are specially adapted or designed to aid in the commission of burglary with intent to use them for a burglarious or larcenous purpose.  The limitations of due process placed upon all statutes by the Fourteenth Amendment to the United States Constitution have caused the following specific principles to be applied by courts in burglar tool cases:

            (1) The definition or description of the articles involved must convey a sufficiently definite warning as to the proscribed conduct to enable a potential lawbreaker to understand that his conduct would fall within the proscription of the statute.State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968).  State v. Fitzpatrick, 141 Wash. 638, 251 P.2d 875 (1927).  State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).

            (2) The statute may only reach the sale or possession of those articles which are intended to be used for an illegal purpose.  State v. Olsen, 43 Wn.2d 726, 263 P.2d 824 (1953).

            (3) Mere possession is not sufficient to raise a presumption of intent to use for an unlawful purpose.  Benton v. United States, 232 F.2d 341 (1956).  Washington v. United States, 232 F.2d 357 (1956).  Mullaney v. Wilbur, 421 U.S. 684, 698, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975).

            Benton v. United States, supra, involved a District of Columbia ordinance prohibiting possession of any "instrument, tool, or other implement for picking locks or pockets, or that is usually employed or reasonably may be employed in the commission of any crime if [the possessor] is unable satisfactorily to account for the possession of the implement. . . ."  This law was held unconstitutional in its application to the possession of a sledge hammer, an axe, two wrecking bars, a hacksaw with several blades, a length of knotted rope, and a brace and bit.  The court reasoned that though these tools could be used criminally, the legitimate purposes for which such tools are, for the most part, used prohibited any relevance of mere possession to guilt.  The same reasoning applied to the possession of two crowbars in Washington v. United States, supra.

            Similarly, inState v. McDonald, supra, our own court dealt with Washington's then existing burglar tool statute2/  [[Orig. Op. Page 5]] prohibiting possession of "any engine, machine, tool, false key, pick lock, bit, nippers or implement adapted, designed or commonly used for the commission of burglary, larceny, or other crime, under circumstances evincing an intent to use [them] . . . in the commission of a crime, . . ."  In this case, however, the law was upheld in its application to the possession of a 2-cell Ever Ready flashlight, an 8 inch shank yellow-handled screwdriver, one 2-foot wrecking bar, one 2-foot pry bar and a 21-foot length of 3/4" manila rope, two fully loaded pistols, a concealed switchblade knife, one pair 12-inch bolt cutters, an 8 to 10-pound mall, a 12-inch punch, an 11-inch wedge, a 6-inch wedge, four pairs of gloves, metal cutters, electrician wires and other assorted tools.  In so ruling the court reasoned that the statute was sufficiently specific in its proscriptions and that surrounding circumstances evidencing intent were present.

            Let us next apply the foregoing principles to your presently proposed legislation.  As in the burglar tool cases, the definition of the articles (possession of which is proscribed) must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.  State v. McDonald,supra; State v. Fitzpatrick, supra; State v. Hart, supra.  In other words a potential law breaker must be able to understand that his conduct would fall within the proscription of the statute.

            The definitions of "drug-related paraphernalia" which you here propose contain the phrases "article . . . which could only reasonably be used for . . ." or "article . . . which is substantially and instrumentally connected with the illegal consumption or ingestion of a controlled substance as defined in chapter 69.50 RCW."  Chapter 69.50 RCW, in turn, is the Uniform Controlled Substances Act and it defines the term "controlled substance" to mean "drug, substance, or immediate precursor" listed in schedules set out later in that act.  See, RCW 69.50.101(d).  Bearing this in mind it is our opinion that the definitions you propose are not sufficiently specific so as to advise a person of common understanding as to the specific articles which are prohibited.3/    [[Orig. Op. Page 6]] Many articles, including those commonly available in tobacco stores and drug counters, may be susceptible to use as an agent for drug abuse.  A person of common understanding and practice may not be able to identify an article which may be used alternatively for ingestion of controlled substances or for other completely unassociated purposes.  Nor may he or she be able to identify an article which may be used alternatively for the legal or the illegal ingestion of controlled substances; e.g., a syringe or capsule.  To the contrary, it is more likely that a person of common understanding and practice would not be able to identify with any certainty which articles are forbidden and which are not.

            In addition, again as with burglar tools, a drug paraphernalia possession prohibition statute would be unconstitutional if it did not contain, as an element, intent to employ the paraphernalia in an illegal fashion.  That intent could not be presumed from the mere possession of particular paraphernalia because the alternate legal and illegal uses thereof do not allow a necessary implication from the fact of possession.  Presumptions based on weak implications violate the due process clause of the Fourteenth Amendment of the United States Constitution, Benton v. United States, 232 F.2d 341 (1956);Washington v. United States, 232 F.2d 357 (1956); State v. Olsen, 43 Wn.2d 726, 263 P.2d 824 (1953); (burglar tool cases).  See alsoFerguson v. United States, 239 F.2d 952 (1957); (lottery tickets); Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975).  Instead, sufficient surrounding circumstances evidencing intent and buttressing the implication of intent from possession would be required to prove intent to use paraphernalia for unlawful purposes.  Given the difficulty of specifically describing paraphernalia which we addressed above, circumstances surrounding possession of paraphernalia might logically imply possession with the intent to employ paraphernalia for lawful purposes as easily as possession with the intent to employ it for unlawful purposes.

            Finally, as with burglar tools, a law prohibiting the sale of drug-related paraphernalia would be unconstitutional without the necessary element of intent to sell to someone who had the intent to employ the paraphernalia in an unlawful manner.  The act of sale itself would not suffice to prove that intent. And again, the difficulty of specifically describing paraphernalia limits the force of the implication that unlawful activity is intended.  The fact that a seller may not know whether the purchaser intends to employ the paraphernalia in a lawful or unlawful manner further limits the force of that implication.  Once again buttressing evidence would be required.

             [[Orig. Op. Page 7]]

            Conclusion:

            The legislation you propose is analogous to "burglar tool" statutes.  Such legislation is unconstitutional unless it specifically defines the activity prohibited and requires, as an element, intent to engage in unlawful activity‑-which intent may not be presumed from possession or sale alone.  We do not believe that either of the bills which you have here proposed would be constitutional, if enacted, in light of those requirements.

            We hope that our analysis has been helpful.

Very truly yours,

SLADE GORTON
Attorney General


JAMES H. DAVENPORT
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Notably, although denominated a civil penalty the minimum and maximum dollar amounts thus prescribed are precisely the same as the minimum and maximum fines which would be fixed by § 3 of Proposal 1, supra.

2/RCW 9.19.050, now repealed, was replaced by chapter 260, Laws of 1975, 1st Ex.Sess. RCW 9A.52.060.

3/The schedules set out in chapter 69.50 RCW contain names of many substances unfamiliar to common understanding and practice; e.g., alphacetylmethadol, clonitazene, dimethyltryptamine, 4-methyl-2, 5-dimethoxyamphetamine.  Moreover, chapter 69.50 RCW does not make the ingestion or consumption of any substance illegal though it does prohibit their unauthorized sale or possession. RCW 69.50.401.

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