State v. Marcum, 939 N.W.2d 840

Background

June 2018: Marcum was charged with possession of a controlled substance (second or subsequent) and possession of drug paraphernalia (second or subsequent).
Logan County officers located a Stutsman County arrest warrant for Marcum in the Central Warrant Information System (CWIS); a "Corrected Warrant" was issued June 5, 2018, and Marcum was arrested June 10, 2018.
During a search incident to arrest, an officer felt a bulge in Marcum’s sock and recovered a glass pipe wrapped in tissue that field-tested positive for methamphetamine; Marcum initially said it was a knife, then admitted it was a meth pipe.
At bench trial the court convicted Marcum of a lesser-included possession offense (first offense, class A misdemeanor) and possession of drug paraphernalia as a second-or-subsequent offense (class C felony), the latter enhanced by certified Ohio convictions for cocaine possession.
Marcum appealed, arguing (1) the arrest (and resulting search) was unconstitutional so evidence should be suppressed, and (2) the evidence was insufficient to support enhancement and possession convictions (residue alone insufficient; no intent to use).
The North Dakota Supreme Court affirmed: denial of suppression (officers reasonably relied on the warrant) and sufficiency of the evidence (Ohio convictions were equivalent; residue and circumstantial evidence supported possession and intent).

Issues

Issue	State's Argument	Marcum's Argument	Held
Validity of arrest / admissibility of evidence	Officers reasonably relied on a CWIS entry and confirmations from the issuing jurisdiction; so arrest and search incident to arrest were lawful under Leon good-faith exception	Arrest was unconstitutional; evidence from the search should be suppressed	Denied suppression — officers acted in objectively reasonable good faith relying on the warrant entry and confirmations
Whether out-of-state (Ohio) cocaine convictions enhance ND paraphernalia offense	Ohio possession convictions are equivalent to an "offense under this title" (ND title 19) and trigger enhancement	Ohio convictions are not "equivalent" paraphernalia convictions required for enhancement	Enhancement affirmed — Ohio possession convictions are equivalent under the statute as construed by the court
Sufficiency of residue to prove possession of controlled substance	Residue in paraphernalia can constitute possession; lab and field tests showed methamphetamine residue and .4 grams measured	Residue alone insufficient to prove possession of methamphetamine	Conviction affirmed — residue testing and weight evidence sufficient to prove possession
Proof of intent to use paraphernalia	Circumstantial evidence (hiding the pipe, initial lie, known drug history, failure to report prior paraphernalia in home) shows intent to use	Pipe was found previously at home and Marcum was transporting it to confront others; no proven intent to use	Conviction affirmed — circumstantial evidence supports intent to use the device for consuming methamphetamine

Key Cases Cited

United States v. Leon, 468 U.S. 897 (good-faith exception to the exclusionary rule)
State v. Dodson, 671 N.W.2d 825 (adopts and applies Leon framework in North Dakota)
State v. Herrick, 588 N.W.2d 847 (circumstances in which reliance on a warrant is not objectively reasonable)
State v. Johns, 932 N.W.2d 893 (interpreting "offense under this title" to refer to the entire ND drug code)
State v. Christian, 795 N.W.2d 702 (residue in paraphernalia can satisfy possession element)
State v. Demarais, 770 N.W.2d 246 (circumstantial evidence can establish intent to use paraphernalia)