Can residue in a pipe be considered possession? Like in a lot of areas, the police officer has
a lot of latitude in what charges are brought against an individual. However, residue in a pipe can, and very often is, considered possession when charges are filed. In addition, the person is usually also charged with possession of paraphernalia.
Under Florida law, Possession or Use of Drug Paraphernalia is a first degree misdemeanor, with penalties that may include jail or probation. Drug paraphernalia is any object or material intended for the production, use, or processing of a controlled substance.
Under Section 893.145, Florida Statutes, drug paraphernalia is defined as “all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . .”
Common examples of Drug Paraphernalia include the following:
Hypodermic syringes, needles, and other objects used for injecting controlled substances into the human body;
Containers and other objects used in storing, concealing, or transporting controlled substances;
Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
Rolling papers, cutting devices, testing devices, balloons, and baggies;
Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;
Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes, with or without screens, permanent screens, hashish heads, or punctured metal bowls;
Water pipes, smoking and carburetion masks, other air driven pipes, “roach clips,” bongs, “whip it” devices for expelling nitrous oxide, “crackers,” and vials.
Penalties for Paraphernalia
In Florida, possession or use of drug paraphernalia is classified as a first degree misdemeanor, with penalties that may include up to 365 days in jail or 12 months probation, and a $1,000 fine.
If placed on probation, a defendant will typically be ordered to submit to random drug testing and may even be ordered to enroll in a drug evaluation and treatment program. Often, a charge of paraphernalia possession will be joined with other common possession charges, such as possession of cannabis, possession of cocaine, or possession of a controlled substance with the intent to sell.
Determining Possession
The determination as to whether a person was in “possession” of the item alleged is one of the most common issues in a paraphernalia case. In Florida, possession may be actual or constructive in nature.
With actual possession, the paraphernalia is on the person of the defendant, in a container in the hand of a defendant, or is within ready reach of the defendant and under his or her control.
Constructive possession means that the paraphernalia is not on the defendant’s person, but is in a place where the defendant has concealed the item or has control over the item. In cases where the paraphernalia is in a place where the defendant does not have control, there must be evidence that:
1The defendant had control over the paraphernalia; and
2knowledge that the paraphernalia was within the defendant’s presence.
There are many scenarios where constructive possession of drug paraphernalia is difficult to prove. The most common situations include:
joint occupancy of a vehicle;
joint occupancy of residence;
presence at a location with multiple persons; and
presence in a vehicle owned or operated by another person.
The defendant may not know of the presence of the paraphernalia and, even if knowledge is proven, it does not follow that he or she necessarily had control of the item.
Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.
For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.
