Sorry, Clark County prosecutors and judges: Even convicted drug dealers have the right to bear … sandwich bags.
In a ruling issued Thursday, Washington Supreme Court justices unanimously agreed that post-prison restrictions placed on two Clark County drug dealers were unconstitutionally vague.
When Isidro Sanchez Valencia and Eduardo Chavez Sanchez were sentenced by Superior Court Judge Diane Woolard in 2007, several restrictions were placed on their post-prison behavior: Don’t commit any new crimes, for example. Don’t hang out with people who are committing crimes.
But while those restrictions are typical, Clark County took it to another, unconstitutional, level with this condition:
“Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances, including scales, pagers, police scanners and hand-held electronic scheduling and data storage devices,” the sentencing memorandum read.
That condition is too broad, the court ruled, and could apply to sandwich bags and cell phones.
Longview attorney John Hays, who represented Sanchez in his appeal and handles cases from different counties, said Clark County prosecutors have been using that sentencing condition, with varying degrees of success, for years.
“Only in Clark County,” Hays said. “This was some deputy prosecutor who years ago sat down at his computer and decided, ‘We are going to have some fun,’ as far as I can tell.”
Fun, in this case, proved to be what the court calls “a manifest error of constitutional magnitude,” which means, despite the fact defense attorneys didn’t object to the condition at sentencing, it was able to be raised on appeal.
“Now we have a definitive decision” about the condition, Hays said.
Clark County Chief Criminal Deputy Prosecutor Denny Hunter did not respond Thursday to a request for comment.
Valencia and Sanchez were among 10 people arrested in an October 2006 drug bust. At the time, it was described by the Vancouver Police Department as a record-breaking bust, with officers seizing $134,000 in cash and 68 pounds of marijuana.
Valencia and Sanchez were convicted of possession of a controlled substance with intent to deliver and conspiracy to commit that crime.
In writing the opinion, Justice Debra L. Stephens quoted from Webster’s Third New International Dictionary to make a point that the contested condition did not even specify “drug paraphernalia.”
“Rather, it proscribes possession or use of the much broader category ‘any paraphernalia,’” Stephens wrote. “‘Paraphernalia’ is defined to include the ‘property of a married woman that she can dispose of by will,’ or ‘personal belongings,’ or ‘articles of equipment’ or ‘appurtenances,’” she wrote.
“Although the word ‘paraphernalia’ in the popular vernacular is often linked to drug use, there is nothing in the condition as written that limits petitioners to refraining from contact with drug paraphernalia,” Stephens wrote.
The prosecutor’s office tried to defend the condition by suggesting that a corrections officer could choose not to enforce the rule.
Having to use that argument, Stephens wrote, should have been a clue to the prosecutor’s office that there was a “potential vagueness problem here insofar as it risks selective or arbitrary enforcement.”
Hays said post-prison conditions about not committing new crimes or cavorting with people who are committing crimes should be sufficient.
He added that it’s not a crime simply to possess drug paraphernalia, such as glass pipes.
He said he once had a client in Woodland whose main decor in his front room was a three-foot bong.
“Charges were dismissed,” he said.
Possession of drug paraphernalia becomes a crime when there’s proof it has been used to ingest drugs, Hays said.
For example, if an officer finds a pipe with drug residue in it and the owner admits to using the pipe for drugs, the owner could be charged with possession of drug paraphernalia with intent to use a controlled substance.
While Valencia, 39, and Sanchez, 28, paved the way for future defendants in Clark County to not to be saddled with the same vague restriction, they won’t likely be returning to court to be resentenced. They were both born in Mexico and when they were released from prison in 2008 they were turned over to immigration officials, a spokeswoman from the Department of Corrections said Thursday.
Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.
