Drug Paraphernalia

Empty soda can? Could be drug paraphernalia. 

Grandpa's tobacco pipe? Could be drug paraphernalia. 

Scale found at your local grocery store to weigh veggies? Could be drug paraphernalia. 

What exactly is drug paraphernalia, versus something innocent?  Drug paraphernalia is any 'thing' used to ingest or store drugs.  One thing you're going to learn here (that law enforcement conveniently forgets), is the fact that just because an item can be used for illicit purposes doesn't mean it is drug paraphernalia. Here's a few factors to consider:

  1. Statements by an owner of the object concerning its use (if someone is dumb enough to say "that's my crack pipe", its drug paraphernalia).
  2. The proximity of the object to the accused (in a room full of people, typically the person closest to the paraphernalia gets charged)
  3. The proximity of the object to actual drugs (in other words, a pipe may be used for tobacco smoking, but if there's a bag of weed right next to the pipe--consider that pipe drug paraphernalia).
  4. The existence of any drug residue on the object (cocaine residue on a soda can will get you a drug paraphernalia charge, and yes, people use soda cans to smoke crack).
  5. The innocence of anyone in control of the object shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia (I hate this factor.  It seems unfair, but I don't make the rules).
  6. Instructions, oral or written, provided with the object concerning its use (who would be dumb enough to do this? You'd be surprised...).
  7. Descriptive materials accompanying the object which explain or depict its use (see number 6, above).
  8. Any advertising concerning its use.
  9. The manner in which the object is displayed for sale (similar to 6,7 & 8, especially important to those running 'head shops')
  10. The existence of legitimate uses for the object in the community (will the police ever testify that tobacco could be smoked in a pipe?  Every tobacco pipe is illegal drug paraphernalia to some cops, they can't help themselves)
  11. Expert testimony concerning the object's use.

Once an item is shown to be "drug paraphernalia" via the checklist above, the fun has just begun. The real challenge for the state is proving 'possession'.

Paraphernalia is typically found in a place that many people have access--under the passenger seat in a car full of people, in the bedroom of a house full of people, and so forth. The legal term for this is "constructive possession". Basically, the police consider proximity to the drug paraphernalia a primary factor in determining who to charge with the crime so, the closer you are to the bong, the more likely it is you will take a hit for the charge. This is good news, because this lazy police work can lead to dismissed charges because the law requires more than mere proximity to the paraphernalia. In a constructive possession case, the law requires some sort of proof connecting the item to the person arrested. This connection can be proven with fingerprints, eyewitness testimony ("Its his pipe!"), confessions ("Yes, that's my pipe"), etc.  For more information on these issues, please check out my articles "Leaving Your Pipe Out Where Police Can See It May Get You a Drug Paraphernalia Charge" and "How Can Residue On My Pipe Lead to a Possession Charge?".

Another problem in proving a paraphernalia case is the element of "illicit knowledge". Many items considered drug paraphernalia are perfectly legal items. Thus, it isn't enough for the state to simply prove that a 'bong' was found in grandma's living room, the State must also prove that your 94 year old grandma knew of the illicit nature of the bong itself, or reasonably should have known. This is especially tough on cases where the paraphernalia is crafted from common household items, such as an aluminum can of soda or a pipe that can be used to smoke tobacco.

Unfortunately, some drug paraphernalia charges magically transform themselves into felony drug possession charges once a forensic chemist examines the paraphernalia.  For example, in the case of Holloman v. State, the defendant had a brass fitting in his pocket with a mesh fitting on it.  2017 Fla. App. LEXIS 2061 (Fla. 4th DCA 2017).  Basically, this thing was a makeshift crack pipe.  Holloman didn't have any crack on him, but the prosecutors sent the brass fitting to their lab, and the lab analyst found trace amounts of cocaine.  Eventually, Holloman was convicted of possession of cocaine.  Yes, this is an absurd result, as it took a laboratory full of gadgets and scientists to find this cocaine residue.  I think the judge got this one wrong, so, for deeper analysis of why they're wrong on this issue, please check out my article "How Past Drug use Can Become a Current Possession Charge."

Drug paraphernalia charges are often brought as a last resort of frustrated cops that cannot charge an individual with more serious drug crimes. If you find yourself up against a paraphernalia accusation, don't wait to see what the police and prosecutor are going to do to you. Give me a call, and we'll discuss your options. Thanks.

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