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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The sticking point: Hypodermic needles and searches incident to arrest

Prescription opioid abuse is at an all-time high,1 and experts believe that as patients lose their legal access to medication, they are likely to turn to illegal injected drugs as an alternative.2 Consequently, law enforcement may soon become more alert to hypodermic needle use and possession. All lawyers who practice criminal law should be aware of how the search-incident-to-arrest framework is contributing to ambiguity and misunderstanding regarding the legality of hypodermic needles.

Searches incident to arrest

A search incident to arrest is valid only if the crime initially giving rise to the arrest is a crime for which a custodial arrest is authorized.3 Searches incident to arrest are rooted in the interests of officer safety, preservation of evidence, and preventing a suspect’s escape.4 It is worth noting that a search incident to arrest can take place before a defendant is formally placed under arrest.5 In State v. Bauman, the Minnesota Court of Appeals noted that the proper terminology is “search incident to probable cause to arrest” because in some cases, “the formal arrest is not for the offense that provided the basis for the search.”6 This can create confusion, because the charges may be unrelated to the initial reason a defendant is searched.

Imagine, for example, that an officer observes an individual injecting a substance into their arm. The officer believes she has probable cause to arrest this person based on her observation and conducts a search incident to arrest based on this belief. During the search, the officer discovers a small packet of cocaine in an interior pocket, but does not discover any more evidence related to an illegal substance being injected. The officer arrests the individual for possession of cocaine. The officer later determines the individual was injecting insulin prescribed by a physician. In this situation, as long as the officer had probable cause based on her initial observation, the ensuing search and arrest are lawful.

If this result is troubling, we might question whether the officer’s observation in the above example should amount to probable cause. It seems odd that administering a legal substance could provide the probable cause necessary for a search. But one thing people are prone to overlook is that the officer in this case likely had probable cause to arrest the subject based on possession of hypodermic needles.

The legality of hypodermic needles

Minn. Stat. §151.40 contains plain language that criminalizes possession of hypodermic needles: “Except as otherwise provided in subdivision 2, it is unlawful for any person to possess, control, manufacture, sell, furnish, dispense, or otherwise dispose of hypodermic syringes… except [medical personnel] acting in the course of their employment.”7 And Minn. Stat. §151.29 (2016) states that violating this provision is a misdemeanor offense. In State v. Reese, the Minnesota Court of Appeals held that Minn. Stat. §151.40 applies to the general public, despite being “contained in a chapter of Minnesota statutes concerned with regulating and licensing occupations, specifically, the regulation of pharmacists.”8 The officer in the example above therefore had probable cause to believe the person using a hypodermic needle was violating the law.

The plain language of the statute and Reese’s holding are at odds with the Minnesota Department of Health’s (MDH) interpretation of the statute. MDH specifically cites Minn. Stat. §151.40 as allowing individuals to obtain and possess hypodermic needles, though that is not consistent with the plain language of the statute.9 MDH’s interpretation is based on the Minnesota Pharmacy Syringe/Needle Access Initiative’s stated purpose, which is to allow lawful purchase and possession of up to 10 syringes without a prescription at pharmacies that participate in the initiative.

The Needle Access Initiative, which was passed in 1997 and took effect in 1998, is an effort to combat the transmission of HIV between syringe users.10 Today the initiative represents an effective and necessary measure to combat the same problem, which threatens a resurgence with the increased prevalence of opioid abuse. Needle exchange programs are an effective measure in countering the spread of disease. In 1997, the Legislature took action in recognition of this fact.

The 1997 amendment to Minn. Stat. §151.40, contained in subdivision 2,11 allows pharmacies to sell 10 or fewer needles without prescription, which is inconsistent with the idea of criminalizing the possession of the needles as set forth in subdivision 1. However, subdivision 2 does not legalize the possession of hypodermic needles; it only legalizes their sale.

It seems clear that the Legislature intended to legalize the possession of hypodermic needles in 1997. That same year the Legislature also exempted hypodermic needles from being categorized as drug paraphernalia in Minn. Stat. §152.01,12 and that statute refers to Minn. Stat. §151.40, subd. 2. But section 152.01 does not expressly legalize hypodermic needle possession, and the only way to reach the conclusion that possession is legal seems to be by implication, which the court of appeals specifically declined to do in Reese. Subsequent unpublished case law indicates that law enforcement continues to enforce this statute criminally.13

Why the problem persists

The fact that a search incident to arrest can be based on a probable-cause determination unrelated to the resulting criminal charge further contributes to the confusion surrounding hypodermic needles. Remember that the officer in the above hypothetical did not charge the individual with possession of hypodermic needles. Instead, as is often the case, the person was charged based on the results of the search, which turned up a more serious offense than the misdemeanor of needle possession. This means that the legality of hypodermic needles is rarely a matter presented to the judicial system. If a person is searched and there is no further evidence of wrongdoing, they are cited for a misdemeanor, they pay the citation, and the issue never reaches court. If the search turns up contraband, they are charged with possessing the contraband rather than hypodermic needles, and the issue never reaches court.

It is generally only in the probable-cause determination that the legality of hypodermic needles becomes an issue, and that issue is resolved based on the clear holding in Reese and the plain language of Minn. Stat. 151.40, subd. 1. This remains so despite the fact that hypodermic needles are used to administer a variety of legal medications, despite the fact that section 151.40, subd. 2 allows pharmacies to distribute hypodermic needles to the public, and despite the fact that the Legislature exempted needles from the drug paraphernalia statute. The fact that hypodermic needles provide a basis to search is a problem exacerbated by the search-incident-to-arrest framework—a framework important for officer safety reasons and thus unlikely to change. The solution to this problem lies in increasing public awareness and, eventually, clarification from the Legislature.

 

Ryan Pesch clerked for the Minnesota Court of Appeals before recently joining Meagher and Geer, PLLP. His personal endeavors are too numerous to adequately relate in a 30-word author bio.

 

Notes

1 Centers for Disease Control and Prevention, Understanding the Epidemic, https://www.cdc.gov/drugoverdose/epidemic/index.html (last updated Aug. 30, 2017).

2 Keck School of Medicine, From Pill to Needle: Prescription Opioid Epidemic May Be Increasing Drug Injection, https://keck.usc.edu/from-pill-to-needle-prescription-opioid-epidemic-may-be-increasing-drug-injection/ (last visited 7/30/2018).

3 State v. Varnado, 582 N.W.2d 886, 888 (Minn. 1998).

4 See U.S. v. Robinson, 414 U.S, 218, 226 (1973) (quotation omitted).

5 See State v. Bauman, 586 N.W.2d 416, 420 (Minn. App. 1998) (“[A] search incident to an arrest can precede an arrest if probable cause to arrest exists at the time of the search and the formal arrest follows quickly on the heels of the challenged search.” (quotation omitted)).

6 Id. at 421.

7 Minn. Stat. §151.40, subd. 1 (2016).

8 446 N.W.2d 173, 179 (Minn. App. 1989).

9 Minnesota Department of Health, Minnesota Pharmacy Syringe/Needle Access Initiative, http://www.health.state.mn.us/divs/?idepc/?diseases/?hiv/syringe?/mnpharmacy.html (last visited 7/30/2018).

10 The program is effective at preventing the transmission of HIV. See Gary A. Novotny et al., The Minnesota Pharmacy Syringe Access Initiative: A Successful Statewide Program to Increase Injection Drug User Access to Sterile Syringes in 42 J. of Am. Pharm. Assoc. no. 6, Supp. 2, S21 (Nov. 2002).

11 1997 Minn. Laws ch. 203m art. 2, §17 (available at https://www.revisor.mn.gov/laws/1997/0/203/).

12 1997 Minn. Laws ch. 239, art. 4, §1. (available at https://www.revisor.mn.gov/laws/1997/0/239/).

13 See, e.g., State v. Tabaka, No. A16-1571, 2017 WL 3122336, at *1 (Minn. App. 7/24/2017) (showing appellant was charged with possessing a needle in violation of statute); State v. Fila, No. A09-302, 2010 WL 1286702, at *3 (Minn. App. 4/6/2010) (holding search was justified in part because of criminal needle possession).

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