Christopher TIPLICK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 49S04-1505-CR-287
Supreme Court of Indiana.
Oct. 7, 2015.
1259
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1312-CR-617
MASSA, Justice.
Christopher Tiplick faces criminal charges for possessing, selling, and deal-
Facts and Procedural History
Synthetic cannabinoids, also known as “spice,” are compounds designed to mimic the psychoactive properties of marijuana, first reported in the United States in 2008. See Schedules of Controlled Substances: Temporary Placement of Three Synthetic Cannabinoids Into Schedule: I, 78 Fed. Reg. 28,735-39 (May 16, 2013) (to be codified at 21 C.F.R. pt. 1308.11(h)(9)-(11)). Regulation of “spice” is a particularly challenging pursuit, as minor variants in chemical structure can place the substances beyond the reach of criminal statutes without diminishing their psychotropic effects. Id. Our General Assembly made two significant revisions to our criminal code in 2012, in an attempt to match pace with the evolving chemistry. First,
On August 15, 2012, pursuant to their authority under Section 4.1, the Pharmacy Board filed Emergency Rule 12-493(E) with the Indiana Register (the “Emergency Rule“), classifying thirteen additional compounds as “synthetics,” including “XLR11 [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone]” Ind. Reg. LSA Doc. No. 12-493(E) (August 15, 2015) (see http://www.in.gov/legislative/iac/20120822-IR-856120493ERA.xml.html). The Emergency Rule thus became effective on September 15, 2012.
In October of 2012, Tiplick was charged with eighteen drug-related counts: Counts I through VI and XVI allege dealing and conspiracy to commit dealing in look-alike substances, while Counts VII through XV and XVII through XVIII allege dealing, conspiracy to commit dealing, and possession of synthetic drugs. The charging information alleges several purchases by undercover police officers at Tiplick‘s stores (all named “Smoke Shop“), “on or about September 20, 2012,” “on or about October 9, 2012,” and “on or about October 10, 2012.” App. at 19-24. The information itself alleged that Tiplick‘s stores sold a “synthetic drug a/k/a spice” without allegations of the precise compound, but the probable cause affidavit accompanying the information asserted that the packages purchased contained “XLR11 [(1-(5-flouropentyl)indol-3-yl)-(2,2,3,3-tetramethylcy-
Tiplick filed a motion to dismiss all charges, claiming the information failed to state the alleged offenses with sufficient certainty, the statutory definition of “synthetic drug” and statutes criminalizing “look-alike” substances were void for vagueness, and the General Assembly could not delegate to the Pharmacy Board the power to declare new synthetic drugs illegal via emergency rule. The trial court disagreed on all points and denied the motion, but certified its order for interlocutory appeal.
A divided panel of our Court of Appeals reversed and dismissed the synthetic drug charges. Tiplick v. State, 25 N.E.3d 190, 196 (Ind.Ct.App.2015). The majority concluded that the provision allowing for the creation of the Emergency Rule rendered the statute unconstitutionally vague, necessitating a “Where‘s Waldo” approach to determining which substances are classified as “synthetic drugs” under Section 321, and that holding a citizen of ordinary intelligence to such a requirement would be “ludicrous.” Id. at 195-96. But the dissent found the statutory scheme created a “finite number of locations” to investigate when determining the legality of the sale of XLR11, and was thus constitutionally permissible. Id. at 196-97 (Bailey, J., dissenting).
We granted the State‘s petition to transfer, vacating the opinion below. Tiplick v. State, 30 N.E.3d 1229 (Ind.2015) (table); Ind. Appellate Rule 58(A).
Standard of Review
“It is well established that a trial court‘s denial of a motion to dismiss is reviewed only for an abuse of discretion.” Study v. State, 24 N.E.3d 947, 950 (Ind. 2015). To the extent we consider matters of law, including constitutional questions, our review is de novo, “but all statutes are presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute in favor of constitutionality.” Dep‘t of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 587 (Ind.2014) (internal quotations omitted).
I. The Synthetic Drug Statute Is Not Unconstitutionally Vague.
“Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions.” Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). To that end, there are two independent causes to invalidate a statute on vagueness grounds: (1) the statute does not provide “notice enabling ordinary people to understand the conduct that it prohibits“; and (2) the statute potentially “authorizes or encourages arbitrary or discriminatory enforcement.”2 Id. Although Tiplick asserts that Sections 321 and 4.1 fail both tests, his briefing does not substantively argue that the statutes permit arbitrary or discriminatory enforcement. Moreover, we do not find sufficient cause to believe these statutes so allow. Despite
Tiplick makes two overlapping contentions in support of his vagueness claim. First, he asserts that the sheer complexity of Section 321 is beyond the grasp of an ordinary person, and thus is impermissibly vague. We do not agree. Our General Assembly is attempting to regulate a field of advanced chemistry that creates synthetic cousins of naturally occurring illegal substances like marijuana. “Article 4, Section 20 instructs the General Assembly to avoid the use of technical terms to the extent that it is practicable. The novelty, complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law.” Elvers v. State, 22 N.E.3d 824, 830 (Ind.Ct.App. 2014) (emphasis in original). Moreover, Tiplick may only challenge the chemical description of XLR11 on these grounds, not the entire text of Section 321. See Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.“). Thus, it may be that a person with ordinary experience and knowledge does not know what [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone] is made of, but that is not the test; rather, it is whether a person of ordinary intelligence would understand his conduct was proscribed. Here, an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it. That is what we demand of our penal statutes.
Second, Tiplick asserts that the cross-referencing of Section 321 and Section 4.1 presents a “statutory maze” that prevents a person of ordinary intelligence from being able to discover which conduct is proscribed. Appellant‘s Br. at 28. In support, Tiplick relies upon Healthscript Inc. v. State, 770 N.E.2d 810 (Ind.2002), which is distinguishable. In Healthscript we found that
II. The Look-Alike Statutes Are Not Unconstitutionally Vague.
Tiplick also asserts a vagueness challenge to
First, Tiplick asserts that the text of the statute itself is impermissibly vague, pointing out that terms such as “substance,” “dosage unit,” “consistency,” “control,” and “nature” are undefined. Appellant‘s Br. at 32-33. Tiplick primarily relies upon Record Head Corp. v. Sachen, which invalidated a local ordinance banning the sale of drug paraphernalia. 682 F.2d 672, 679 (7th Cir.1982). We, however, find that Sachen demonstrates that the language of the Look-Alike Statutes is adequate. The ordinance at issue in Sachen prohibited the sale of drug-related “instruments,” defined as “devices designed for use or intended for use in ingesting, smoking, administering, or preparing any controlled substance,” and went on to list a number of factual considerations to be used in making that determination, such as expert testimony and business registrations. Id. at 677. The Seventh Circuit determined, “In place of the scienter requirement, the West Allis ordinance enumerates various factors to be considered in deciding what is an instrument.... Far from curing vagueness, these factors seem to us to exacerbate it. None of the factors helps to define the intent of the noncommercial purveyor....” Id. (emphasis added). This is consistent with long-standing precedent of the United States Supreme Court, holding that a proper scienter element defeats a vagueness challenge to a criminal statute:
[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection
that it punishes without warning an offense of which the accused was unaware. Screws v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
Unlike the ordinance at issue in Sachen all three of the Look-Alike Statutes have a sufficient scienter requirement—“knowingly or intentionally” dealing in a look-alike substance,
Tiplick also asserts that the Look-Alike Statutes permit arbitrary or discriminatory enforcement, because the factors and statutory terms used in examining the defendant‘s intent “are fuzzy, contradictory and dangerously open to erratic and after-the-fact interpretation.” Appellant‘s Br. at 35 (quoting Sachen, 682 F.2d at 678). In particular, Tiplick argues that the charges against him under the Look-Alike Statutes were based on the sale of “chocolate chip cookies,” and thus even an ordinary grocery store could be subjected to search and seizure in the police‘s sole discretion. But Tiplick overlooks two important pieces of context contained in the probable cause affidavit: (1) these cookies were being sold at a store named “Smoke Shop” that did not otherwise sell food products; and (2) these cookies were represented by the store staff as being “Hippie Chips,” not garden-variety cookies. App. at 29, 34. Moreover, the statutory factors Tiplick complains of in
III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority.
Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution,6 because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. The trial court disagreed, relying primarily upon People v. Turmon, which interpreted the Michigan Constitution to permit its Board of Pharmacy to add additional drugs to its controlled substances schedule. 417 Mich. 638, 340 N.W.2d 620, 627 (1983). Although we agree with Tiplick that Turmon is not controlling precedent in Indiana, it does not necessarily follow that Section 4.1 is an impermissible delegation of legislative authority under Indiana law.
The creation of criminal statutes is an inherently legislative function. State v. Moss-Dwyer, 686 N.E.2d 109, 111 (Ind. 1997) (“Indiana courts have consistently supported the proposition that the nature and extent of penal sanctions are primarily legislative considerations.” (internal quotations omitted)). Tiplick asserts that all delegation is prohibited if violation of the administrative rules would result in criminal penalties, relying on our statement in Ensign v. State that “the legislature cannot delegate its express authority defining criminal responsibility to anyone.” 250 Ind. 119, 124, 235 N.E.2d 162, 165 (1968). Our decision in Ensign, however, does not stand for Tiplick‘s broad proposition. Richard Ensign was convicted of manslaughter in connection with the Coliseum tragedy at the State Fair Grounds in 1963, when three propane tanks he had left in the building exploded.7 Id. at 120-21, 235 N.E.2d at 162-63. The charges were bootstrapped onto Ensign‘s violation of rules and regulations promulgated by the State Fire Marshal, on the theory that an involuntary killing occurred “while in the commission of an unlawful act.” Id. at 120, 235 N.E.2d at 163. We reversed the conviction, finding that violation of the Fire Marshal‘s regulations was not “unlawful” per se: “The only statutes empowering the Fire Marshall to make rules and regulations specifically limits them. This Court has previously held those sections were not designed nor intended to confer law making power upon the Fire Marshall. His authority to make rules and regulations does not include legislative power.” Id. at 124, 235 N.E.2d at 165.8 Thus in Ensign,
we did not hold the General Assembly could not delegate any portion of its authority over the penal code; rather, we found the General Assembly did not delegate any such authority to the State Fire Marshal.
Accordingly, it appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions.9 This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid?
We can discern no guidance from the Indiana Constitutional Convention of 1850-51 with respect to whether the Distribution of Powers Clause prevents delegation where criminal penalties could result.10 Therefore, although our decision today is based exclusively on the Indiana Constitution, we think it appropriate to seek guidance from other state courts and the United States Supreme Court, which have previously confronted these questions in interpreting constitutional counterparts to our Distribution of Powers Clause. See, e.g., Clem v. Christole, Inc., 582 N.E.2d 780, 783-84 (Ind.1991) (deriving guidance on Indiana‘s Contracts Clause (Article 1, Section 24 of the Indiana Constitution) from United States Supreme Court precedent interpreting the Federal Contracts Clause (Article 1, Section 10 of the United States Constitution)).
In particular, the Supreme Court has considered such a delegation under the Federal Constitution, and examined facts very similar to those at issue here. In Touby v. United States, the Court considered the constitutionality of a 1984 amendment to the Federal Controlled Substances Act, which permitted the Attorney
One Indiana case also provides interesting guidance. In Burk v. State, Debra Burk was charged with the use of LSD under the Indiana Uniform Narcotic Drug Act, but LSD was only prohibited under the Indiana Dangerous Drug Act. 257 Ind. 407, 409-10, 275 N.E.2d 1, 2-3 (1971). The State‘s theory was that because the Pharmacy Board was empowered to enact regulations stating additional substances met the statutory definition of “narcotic drugs” under the NDA, the Pharmacy Board could also redefine the NDA to include the definition of “dangerous drugs” in the DDA (which the State alleged had occurred), and thus the NDA now covered all substances included in the DDA. Id. We rejected this contention, finding that since the Pharmacy Board‘s power was limited to “determining, after reasonable notice and opportunity for hearing, whether a certain drug falls within the definition of a ‘narcotic drug’ as that term is used in the Narcotic Drug Act,” the Pharmacy Board could not redefine the NDA. Id. at 410-11, 275 N.E.2d at 3. However, our discussion strongly implied that the Pharmacy Board‘s actual authority--to determine whether additional substances met the definition of a “narcotic drug” under the NDA—was appropriate, even though criminal penalties would result. Id. at 411, 275 N.E.2d at 3.
Based on the weight and consistency of this authority, we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and more-
In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind.2008) (internal quotations omitted). Such delegations are valid when “accompanied by sufficient standards to guide the agency in the exercise of its statutory authority.” Healthscript, 770 N.E.2d at 814. These standards “need to be as specific as the circumstances permit, considering the purpose to be accomplished by the statute.” Barco Beverage Corp. v. Ind. Alcoholic Beverage Comm‘n, 595 N.E.2d 250, 254 (Ind.1992).
Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at
In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.
IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule.
Tiplick asserts two challenges to the charging information with respect to the synthetic drug charges. First, Tiplick claims the information is fatally flawed because it fails to name a specific synthetic drug within its four corners, even though the supporting probable cause affidavit does allege that the products sold contained XLR11. It has long been the rule in Indiana that the State may meet its burden of providing sufficient notice of the charges the defendant faces through the combination of an information and a probable cause affidavit. See Patterson v. State, 495 N.E.2d 714, 719 (Ind.1986); Woods v. State, 980 N.E.2d 439, 443 (Ind.Ct.App. 2012) (“Since the charging information and probable-cause affidavit are filed together,
Second, Tiplick claims the information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. In State v. Jennings, the defendant was charged with possession of a “dangerous drug,” (namely, marijuana) under
There being no statutory offense alleged, it was incumbent on the State to allege that the appellee violated the promulgated rule of the Board of Pharmacy ... Yet, nowhere in the record before us does the Board of Pharmacy rule appear. The affidavit was clearly defective in that it alleged no criminal offense. Id. at 444, 317 N.E.2d at 447.
The same circumstances--almost to the letter--have occurred here: Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings.
The State urges us to disavow Jennings, arguing that subsequent Indiana precedent has imposed a lesser standard on the allegations in the charging information: “An information that enables an accused, the court and the jury to determine the crime for which conviction is sought satisfies due process.” State‘s Br. at 13 (quoting Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct.App.2005) and Lampitok v. State, 817 N.E.2d 630, 636 (Ind.Ct.App.2004)). We have no quarrel with the standard used in Dickenson and Lampitok for determining the adequacy of an information in general, and we agree with the State that fairness does not mandate dismissal under these circumstances, as Tiplick is at this point fully informed that the underlying statutory basis for the charges is the Emergency Rule, even if the information was not completely explicit in that regard. However, we believe we remain duty-bound to follow Jennings under the highly specific factual circumstances presented, given the extreme parity of the two cases. We are therefore obliged to dismiss counts VII through XV and counts XVII through XVIII of the information.13
XLR11 became a criminal substance in Indiana on September 15, 2012, and Christopher Tiplick is alleged to have violated that rule a mere five days later. While he may have the dubious honor of being the first person in Indiana history so charged, being first does not entitle him to a free pass. As Justice Joseph Story opined more than 180 years ago:
It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.... There is scarcely any law, which does not admit of some ingenious doubt, and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them.
Barlow v. United States, 32 U.S. 404, 411, 7 Pet. 404, 8 L.Ed. 728 (1833). For the foregoing reasons, we affirm the trial court‘s denial of Tiplick‘s motion to dismiss the charges against him under the Look-Alike Statutes (counts I through VI and XVI), we dismiss the XLR11-related charges (counts VII through XV and counts XVII through XVIII) only for insufficiency of the charging information, and remand to the trial court for all other proceedings consistent with this opinion.
RUSH, C.J., and DICKSON, RUCKER, and DAVID, JJ., concur.
Notes
In determining whether representations have been made, subject to subsection (a)(1), or whether circumstances of distribution exist, subject to subsection (a)(2), the trier of fact may consider, in addition to other relevant factors, the following:
(1) Statements made by the owner or other person in control of the substance, concerning the substance‘s nature, use, or effect.
(2) Statements made by any person, to the buyer or recipient of the substance, that the substance may be resold for profit.
(3) Whether the substance is packaged in a manner uniquely used for the illegal distribution of controlled substances.
(4) Whether:
(A) the distribution included an exchange of, or demand for, money or other property as consideration; and
(B) the amount of the consideration was substantially greater than the reasonable retail market value of the substance.
The Legislature cannot delegate the power to make laws. Nor is this a case in which the Legislature has enacted a law and delegated to a ministerial body the duty of ascertaining the facts upon which the law will operate. In such a case disobedience would be in violation of the statute, and not of a rule of the ministerial board.
It is clear that the statute which authorizes the Fire Marshal to make rules for the safety of life and property was not designed or intended to convey law-making power upon the Fire Marshal. The rules are only enforcible [sic] by order in the same manner that other safety orders are enforced. 217 Ind. 683, 693, 29 N.E.2d 206, 206-07 (1940) (internal citations omitted).