Passing the Pipe Test

Jacob Sullum | April 18, 2007

Today the New Hampshire Supreme Court issued a ruling in a drug paraphernalia case that may not restore your faith in the legal system but should at least stop you from losing hope entirely. Back in October 2001, police raided Dover's Smoke Signals Pipe and Tobacco Shop, seizing various items they identified as drug paraphernalia. The store's manager, Susan Hargrove, ultimately pleaded guilty to a single charge of selling drug paraphernalia, resulting in a suspended $1,000 fine. As part of the plea agreement, the government returned most of the seized merchandise, including glass pipes, a glass chillum, various water pipes, and metal one-hitters (small, narrow pipes), indicating they were OK to sell.

In March 2004, less than two months after the plea agreement, the same police department raided the same store and seized several of the same items prosecutors had just given back. After the government filed new paraphernalia charges against Smoke Signals, a judge acquitted the company in a bench trial, concluding that Hargrove and her mother, Kelly, the store's owner, could not knowingly have possessed drug paraphernalia, a requirement for conviction under state law, since the items had been returned by the government. But when Smoke Signals filed a motion asking for the merchandise back, the judge said no. Despite the fact that the government had told Susan and Kelly Hargrove the items were not drug paraphernalia, the judge concluded they were, based mainly on the testimony of a detective who conceded he was not an expert on the subject and could not explain the methods he used to identify paraphernalia. Smoke Signals appealed, arguing, among other things, that the state paraphernalia law, which bans items "customarily intended for use" with illegal drugs, is so vague that people cannot reasonably be expected to know when they have violated it.

In today's ruling, the state Supreme Court rejected that argument but nevertheless ordered the return of Smoke Signals' merchandise, saying it could not be considered contraband in light of the store's acquittal on paraphernalia charges and the government's earlier assurances that it was legal:

The State's argument that the items at issue are now—and apparently always have been—contraband, is inconsistent with its own conduct in this case. In January 2004, the State made clear to Smoke Signals that there were six specific categories of items that it could not sell. The State also returned to Smoke Signals certain glass pipes and other items. Presumably at that time, the State did not consider the items it returned to be contraband. Then, the State reversed course and prosecuted Smoke Signals for, as the superior court found, "items virtually indistinguishable from many of the items returned to Smoke Signals after the first prosecution."

While the Hargroves may not have known the pipes were considered drug paraphernalia before, surely by now they realize the government takes a dim view of their merchandise. So once they get it back, maybe the police will seize it a third time.

[Thanks to Jonathan Cohen, Smoke Signals' lawyer, for the tip.]