Under Florida Statute 893.147, it is a crime to possess drug paraphernalia. Sometimes it can be difficult for authorities to determine if a particular object is drug paraphernalia or an object being used for a legitimate purpose. Florida Statute 893.146 lists thirteen different factors for law enforcement, a State Attorney, a Judge, or a Jury to consider in determining if an object is drug paraphernalia.
First the Statute provides that all relevant factors be considered. This is very broad and allows for practically any fact to be considered. The Statute then has the list of thirteen factors that shall be considered. We will look at each factor and include a brief explanation.
F.S. 893.146 (1)- Statements by an owner or by anyone in control of the object concerning its use.
This is a good reason why a suspect of a crime should keep their mouth shut until they talk to a lawyer. If a suspect admits they use a particular object to ingest an illegal substance, then practically anything can be paraphernalia.
F.S. 893.146 (2)- The proximity of the object, in time and space, to a direct violation of this act.
Where was the potential paraphernalia found? In your hand or in your pocket is not good. Being caught in the act of smoking or ingesting illegal drugs is pretty conclusive.
F.S. 893.146 (3)- The proximity of the object to controlled substances.
If there are no illegal drugs in the area, then it will be hard to prove that an object is drug paraphernalia.
F.S. 893.146 (4)- The existence of any residue of controlled substances on the object.
Residue of illegal drugs on an object can show that an object as innocuous as a spoon or a piece of tinfoil is actually drug paraphernalia. Cleaning an object once used as paraphrenia can remove residue and prevent a criminal charge.
F.S. 893.146 (5)- Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he or she knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.
This section helps authorities prosecute the operators or owners of head shops or smoke shops. Intent is important in determining if an object is paraphernalia. This is why you see signs in some shops declaring that the pipe or water pipe is only intended to be used to smoke tobacco or for other legal purposes.
F.S. 893.146 (6)- Instructions, oral or written, provided with the object concerning its use.
If an undercover agent buys a pipe from a shop and the clerk tells the agent how to smoke marijuana with the pipe, then the clerk can be arrested. If the clerk only mentions tobacco, then it is less likely the clerk will be arrested.
F.S. 893.146 (7)- Descriptive materials accompanying the object which explain or depict its use.
If the pipe comes in a package with a big marijuana leaf and instructions on how to smoke marijuana, then the object is probably paraphernalia.
F.S. 893.146 (8)- Any advertising concerning its use.
Yes, there are people who have openly advertised pipes and other objects as illegal drug paraphernalia. This makes it easy for authorities to arrest and successfully prosecute a suspect.
F.S. 893.146 (9)- The manner in which the object is displayed for sale.
A pipe in a display case with a big picture of people smoking marijuana out of a similar pipe could easily be considered paraphernalia.
F.S. 893.146 (10)- Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor of or dealer in tobacco products.
If you go to a nice mall and a cigar shop sells expensive cigars, pipes, humidors, lighters, and other objects traditionally used to smoke tobacco, and you purchase a pipe, you are very safe from arrest. Later that same pipe, in a different context, could be considered paraphernalia.
F.S. 893.146 (11)- Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
This section again goes after head shops as opposed to a store selling tobacco related products. The more cigars a store sells the more pipes they can legally sell.
F.S. 893.146 (12)- The existence and scope of legitimate uses for the object in the community.
Rolling papers were used to make tobacco cigarettes before the use of marijuana became widespread. Some communities still like to roll their own cigarettes. Some communities have long used water pipes and other exotic pipes to smoke tobacco. The existence of such use can show the intent of the user and provide protection from prosecution for a crime.
F.S. 893.146 (13)- Expert testimony concerning its use.
Experts are allowed to give their opinions in court. In a trial, the intended use of an object is at issue. One expert could conclude an object is intended to be used in an illegal fashion and therefore paraphernalia. Another expert could conclude the exact same object is not paraphernalia. If you are charged with the crime of possession of paraphernalia, you will want to discuss with your attorney the hiring of an expert.
At Mario, Gunde, Peters, Rhoden & Kelley, LLC our attorneys have handled thousands of cases involving possession of paraphernalia. If you are charged with possession of paraphernalia or any drug related crime call Mario, Gunde, Peters, Rhoden & Kelley, LLC, for a free consultation by phone or in person. You can . Do not discuss your case with anyone and do not make any statements to the police. Call 321-631-0506 or email using the form at the top of this page.