Drug Paraphernalia Charge (Idaho)

haydenm92 · Jan 23, 2011

What is the name of your state (only U.S. law)? Idaho

My ticket states "Drug Paraphernalia Use or Possess w/ Intent to Use"

I was driving down the highway speeding and a cop pulled me over. He told me that normally he wouldn't pull me over for the speed I was travelling, but the weather conditions didn't permit those kinds of speeds (it was raining).
After he gave me a ticket for speeding and failure to provide insurance he asked if he could search my car. I know now that I should have probably asked why, or said no, but I told him yes thinking the officer would take kindly to cooperation. I had completely forgot about a metal pipe sitting in a little cupboard in my car, I thought I was safe. The officer found it pretty quickly. He continued searching the car, but didn't find anything else suspicious.
The catch is that I know that pipe has never been used to smoke marijuana. There is a funny story behind the pipe's use actually, but that's probably irrelevant. I asked the other officer on location if the they had field test kits and could test the pipe for THC. He said yes, but didn't test the pipe. I know the pipe would pass because it wasn't used for marijuana.

So my question is, could I defend this in court? At least ask for the pipe to be sent to be tested before they could say it was truly marijuana? I told the officer who found the pipe that it wasn't used to smoke marijuana to which he replied "too bad, smells like it". Although his attitude to my question was arrogant and rather presumptuous, I was told never to argue, but to leave it for court. So I replied "OK, thank you sir".

My past records consists of 3 speeding tickets, but nothing drug related whatsoever. I turn 19 April of this year.

FlyingRon · Jan 24, 2011

There's no requirement that the paraphernalia be dirty in Idaho. All they have to do is show some intent to use. Your stupid comments (you have the right to remain silent) as well as the design of the pipe will be enough to convict. You argument you weren't going to use it for drugs is not going to be persuasive.

haydenm92 · Jan 24, 2011

FlyingRon said:
There's no requirement that the paraphernalia be dirty in Idaho. All they have to do is show some intent to use. Your stupid comments (you have the right to remain silent) as well as the design of the pipe will be enough to convict. You argument you weren't going to use it for drugs is not going to be persuasive.

The pipe hadn't been used in over 6-8 months, it was just idle. What was my intent if the pipe had never been used for marijuana, nor been used in over 6 months?

FlyingRon said:
Your stupid comments...

Not trying to be rude, but what stupid comments did I make? I reread my first post and I couldn't find anything that came across as too stupid.

Thanks for your advice by the way.

FlyingRon · Jan 24, 2011

haydenm92 said:
The pipe hadn't been used in over 6-8 months, it was just idle. What was my intent if the pipe had never been used for marijuana, nor been used in over 6 months?

If you had used it before, you have the intent to use it for drugs.

Not trying to be rude, but what stupid comments did I make? I reread my first post and I couldn't find anything that came across as too stupid.

Making smart comments to the cop about whether or not they could test for drugs. You have the right to remain silent, use it.

haydenm92 · Jan 24, 2011

FlyingRon said:
If you had used it before, you have the intent to use it for drugs.

This makes no sense... I've used it before, but NOT for smoking marijuana. That's like saying I smoked tobacco out of a pipe, but because a pipe can be drug paraphernalia, then it automatically is because previously an unidentified (and possibly legal) substance was smoked out of it.

You realize you can smoke more than just marijuana, right?

FlyingRon said:
Making smart comments to the cop about whether or not they could test for drugs. You have the right to remain silent, use it.

Why would you imply my comments were smart? Is it possibly because I stated I was turning 19 in April and teens are 'notorious' for smart-ass attitudes? Because I was actually very polite with the officer. While one officer was searching my car, I asked this, "do you guys have drug testing kits that can test substances on-site for THC?" I asked in a calm, inquiring tone, nothing smart about it.. I was hoping by asking that that possibly the officer could test the pipe and see I was telling the truth. After all, isn't it within my rights to ask honest, fair questions?

FlyingRon · Jan 24, 2011

Here's the definitions from the statute. It would behoove you to actually learn what you're going to argue rather than making half-assed assumptions.

"Drug paraphernalia" means 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, injecting, ingesting, inhaling,
or otherwise introducing into the human body a controlled substance in
violation of this act. It includes, but is not limited to:
(1) Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of plant
which is a controlled substance or from which a controlled substance can
be derived;
(2) Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing controlled
substances;
(3) Isomerization devices used, intended for use, or designed for use in
increasing the potency of any species of plant which is a controlled
substance;
(4) Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances;
(5) Scales and balances used, intended for use, or designed for use in
weighing or measuring controlled substances;
(6) Diluents and adulterants, such as quinine hydrochloride, mannitol,
mannite, dextrose and lactose, used, intended for use, or designed for use
in cutting controlled substances;
(7) Separation gins and sifters used, intended for use, or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana;
(8) Blenders, bowls, containers, spoons and mixing devices used, intended
for use, or designed for use in compounding controlled substances;
(9) Capsules, balloons, envelopes and other containers used, intended for
use, or designed for use in packaging small quantities of controlled
substances;
(10) Containers and other objects used, intended for use, or designed for
use in storing or concealing controlled substances;
(11) Hypodermic syringes, needles and other objects used, intended for
use, or designed for use in parenterally injecting controlled substances
into the human body;
(12) Objects used, intended for use, or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish
oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes
with or without screens, permanent screens, hashish heads, or
punctured metal bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
(e) Roach clips: meaning objects used to hold burning material, such
as a marijuana cigarette, that has become too small or too short to
be held in the hand;
(f) Miniature cocaine spoons, and cocaine vials;
(g) Chamber pipes;
(h) Carburetor pipes;
(i) Electric pipes;
(j) Air-driven pipes;
(k) Chillums;
(l) Bongs;
(m) Ice pipes or chillers;
In determining whether an object is drug paraphernalia, a court or other
authority should consider, in addition to all other logically relevant
factors, the following:
1. Statements by an owner or by anyone in control of the object
concerning its use;
2. Prior convictions, if any, of an owner, or of anyone in control of the
object, under any state or federal law relating to any controlled
substance;
3. The proximity of the object, in time and space, to a direct violation
of this act;
4. The proximity of the object to controlled substances;
5. The existence of any residue of controlled substances on the object;
6. Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom he 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;

Read those carefully. They don't have to prove that you were intending to take it out and smoke it. The fact that it is of a type listed that is used for illegal drugs and not for legitimate tobacco smoking, the fact that there is residue, the fact that there is evidence by your statement that you knew it could be used for drugs, etc... do not bode well for you.

You realize you can smoke more than just marijuana, right?

Surely I do, while I don't smoke illegal drugs, I have an extensive collection of pipes that no reasonable person would associate with drug paraphernalia. My local tobaconist mixes up a special blend of Virginia flake and green river burley.

his, "do you guys have drug testing kits that can test substances on-site for THC?" I

You said you asked this after they discovered the pipe. This makes it clear that you knew the pipe could have been associated with drug use and it was stupid as the case is not argued on the side of the road, cops don't need to test for THC to make the arrest (the pipe itself, let alone the distinctive marijuana smell is way more than enough probable cause). You should not have consented to the search and you shouldn't have continued to state incriminating things once they found illegal items.

But your so smart, forget what I've said. Go represent yourself in court and argue that your pot-stinking pipe was intended to be used to smoke Prince Albert and that since the cops didn't have a field test kit for drugs your charges should be dismissed.

haydenm92 · Jan 24, 2011

FlyingRon said:
Here's the definitions from the statute. It would behoove you to actually learn what you're going to argue rather than making half-assed assumptions.

"Drug paraphernalia" means 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, injecting, ingesting, inhaling,
or otherwise introducing into the human body a controlled substance in
violation of this act. It includes, but is not limited to:

This, in my opinion, should be where the case falls apart. "Controlled substance" is the key word, my metal pipe wasn't used for ingesting "controlled substances" and this was stated to the officer. It was used to ingest a 100% legal product: damiana leaf - Google Search

That's what was smoked in the pipe. There is no way it can smell like marijuana, I think the officer just said that because sure, 1) There was a pipe and 2) it was resonated. What else could it be, right?

FlyingRon said:

But your so smart, forget what I've said. Go represent yourself in court and argue that your pot-stinking pipe was intended to be used to smoke Prince Albert and that since the cops didn't have a field test kit for drugs your charges should be dismissed.

Click to expand...

I'm not claiming charges should be dismissed for that reason, I'm claiming that charges should be dropped because there was not enough reasonable evidence to determine the pipe's use was for marijuana purposes or intended to use for marijuana. Sure, the cop said it smelled like marijuana, but I'm human just like the cop and I can also say anything I want that's not real. If it could be proven that the pipe was never used for marijuana or illegal purposes, then I couldn't see how else the judge could convict me for intent to use. I did not intend anything with my actions.

The officer confronted me with the pipe and said "C'mon man, why do you have this?" I said I'm sorry officer, that wasn't used to smoke marijuana, it was for a legal substance. Therefore I didn't admit to intending to use it for marijuana, I admitted to intending to use it for a legal plant substance...

FlyingRon · Jan 24, 2011

Believe what you want. You seem incapable of understanding that while the statute has INTENT TO USE in the title, they don't have to suck some finding of intent out of your brain. Whether you can invent some story about smoking banana peels in the thing, that's not enough to get you off with the literal reading of the statute. It's not YOUR intent that they have to prove, the fact that this device is INTENDED to be used to smoke pot is enough. Have fun in court.

haydenm92 · Jan 24, 2011

FlyingRon said:
Believe what you want. You seem incapable of understanding that while the statute has INTENT TO USE in the title, they don't have to suck some finding of intent out of your brain. Whether you can invent some story about smoking banana peels in the thing, that's not enough to get you off with the literal reading of the statute. It's not YOUR intent that they have to prove, the fact that this device is INTENDED to be used to smoke pot is enough. Have fun in court.

Hmmm... sounds unconstitutional to me. So you would expect a cop that pulled you over to write you a ticket for drug paraphernalia if you were carrying one of your wooden tobacco pipes in your car?

By the way, they don't have to suck some finding out of my brain.. all it takes is a simple scrape of the plant matter found on the pipe, testing for THC, and if there is none, then the PIPE itself (not me or my intent) would NOT be intended for marijuana/illegal use.

FlyingRon · Jan 25, 2011

Not every law you don't agree with is "unconstitutional." It's constitutional because it was duly enacted by the legislature, signed by the governor and not contrary to any constitutional provision.

It doesn't matter what they scrape out of the pipe. You keep failing to understand, it doesn't matter what was in the pipe (though marijuana residue would be more clear cut). The pipe is of a type intended for use with drugs.

I'm done, we're just going in circles here. Have fun in court.

Karlq · Jan 29, 2011

Defend your rights.

haydenm92, absolutely fight this in court.

The cop that asked to search your car was asking to violate your Fourth Amendment rights guarding against unwarranted searches and seizures, that is, if there was no probable cause. Your consent to this invasion changes things, (and I'm not blaming you, as some cops are corrupt and saying no would have made it worse for you...you did the right thing) but it is a point that should be brought up in court, and the judge may be sympathetic, just as you stated it here.

The fact that you requested the pipe be field tested for THC and that you were refused that test, is another pertinent point that must be brought up.

Your "intent" to use it to smoke marijuana is unfounded as well. This is the key. There were no drugs in your vehicle, and you were not charged with possession.The court or police must prove that you in fact, intended or used the pipe for marijuana. They will be unable to prove this. You can argue this well.

You can absolutely and should defend this in court and you will most likely see this charge dropped. The gung-ho cop was right to say you can take it to court, as he just didn't care.

Proving intent would be all but impossible for the court since you have no convictions, and the cop refused your requests.

So, I am saying fight this, defend your rights in court, and you will win. It will be very easy.

ElvinMelvin · Jan 29, 2011

haydenm92 said:
This, in my opinion, should be where the case falls apart. "Controlled substance" is the key word, my metal pipe wasn't used for ingesting "controlled substances" and this was stated to the officer.

Hayden,

IMHO, you are doing something quite common amongst people who are unfamiliar with the law; you are only reading the part of the statute that you think applies to you.

You need to read all parts of the statute.

I could rewrite part of the statute to read like this:

(12) Objects ...designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish
oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes
with or without screens, permanent screens, hashish heads, or
punctured metal bowls;

You don't have to have used the pipe. You could have bought it and left it clean spanking new in your car. It still counts as paraphernalia because it was "designed for" use in smoking weed. As such, it is contraband.

You were foolish to consent to the search (it still boggles my mind that after a routine speeding stop you just let this guy search your car without you having any regard for your 4th Amendment rights). You exacerbated it by making it clear you knew the pipe was "designed for" smoking pot per the statute.

JMHO

ElvinMelvin · Jan 29, 2011

haydenm92, absolutely fight this in court.

The cop that asked to search your car was asking to violate your Fourth Amendment rights guarding against unwarranted searches and seizures, that is, if there was no probable cause. Your consent to this invasion changes things, (and I'm not blaming you, as some cops are corrupt and saying no would have made it worse for you...you did the right thing) but it is a point that should be brought up in court, and the judge may be sympathetic, just as you stated it here.

There is no 4th Amendment question here. He foolishly consented to a search. And if the cop were corrupt and did violate OP's 4th Amendment rights, then the evidence would be excluded and the state's case would evaporate.

I reckon the judge will not be sympathetic.

The fact that you requested the pipe be field tested for THC and that you were refused that test, is another pertinent point that must be brought up.

The fact that he brought it up is evidence that he knew the intended use was for smoking pot. Read the statute.

Your "intent" to use it to smoke marijuana is unfounded as well. This is the key. There were no drugs in your vehicle, and you were not charged with possession.The court or police must prove that you in fact, intended or used the pipe for marijuana.

Apparently they don't. From the statute, it seems that the state assumes that someone who is in possession of a pipe designed for the ingestion of marijuana intends to use it that way.

JMHO

Karlq · Jan 30, 2011

There was no probable cause to ask to search the vehicle in the first place, but many are intimidated by aggressive cops , and he didn't have anything to hide anyway...

As far as intent, many persons think that the statute implies that a pipe is automatically used for something illegal. I smoked tobacco with wooden pipe for a few years. A wood pipe is listed in the statue.
Now if the pipe had marijuana in it...case closed. If there was marijuana in his possession...case closed. The fact is, there was nothing to indicate that it was to be used for marijuana, any more than tobacco. Last time I looked, we do not live under a Naz! government...It is similar to saying that if a person has a gun, they "intend" to murder someone.

You have the absolute right to purchase and posses a wood pipe or any pipe that is legally sold, and use it for tobacco or just for a collection, as I do. It is up to the state to decide if there was intent to use it for illegal purposes, and in this case, there is not one iota of even circumstantial evidence to come to such a conclusion. If the cop thought it smelled like MJ, then the pipe would be tested and upon the state finding that the pipe had no MJ residue, then the case must be dropped and the cop needs to personally apologize to the poster, for being wrong and for being a jerk.

We need to stand up for our rights and fight were a fight is needed. Too many persons roll over when the State rolls over them.

This topic caught my attention, because it happened in Idaho, where I live. A few years ago, I bought a beautiful hand blown glass pipe in Germany for my collection, no problems with US customs, but upon driving home from the airport, the same thing happened ...I made a bad left turn, got pulled over, the pipe was in it's original box, never used, and never to be used...the cop saw it on my floor and wrote a citation for possessing drug paraphernalia. I went to court, told the story, the judge dropped the charge, said there was no evidence of intent (the power-tripping cop searched my vehicle after finding the pipe) and the judge ordered that the "evidence" be returned to me.

So take it to court if you are innocent, it is your right and duty to stand up to the state and to the bully cops., as they don't know until you do. You will win.

And since the pipe is legal to purchase, consider suing the bast#urds for their harassment.

CdwJava · Jan 30, 2011

Karlq said:
The cop that asked to search your car was asking to violate your Fourth Amendment rights guarding against unwarranted searches and seizures, that is, if there was no probable cause.

One exception to the warrant requirement includes CONSENT, which was freely given after the defendant was free to go. Ooops on him for giving that consent. No judge will be able to toss out consent just because he thinks the kid should have declined.

The fact that you requested the pipe be field tested for THC and that you were refused that test, is another pertinent point that must be brought up.

Yes, the issue of intent is a valid point of inquiry. Though field testing it i highly unlikely.

If the pipe was seized as evidence and is later tested, if it comes back negative for any controlled substance then the state may not file. If they do file, he can always argue the intent element. Though given the design and structure of such pipes it would be of little problem for the state to march up multitudes of witnesses that would identify it as a pot pipe. And while I have yet to ever see someone smoke tobacco in one, that is how they are often marketed (at least out here). And, with the ID law, it appears that one could really stretch the definition to include even legitimate tobacco pipes if one wanted to.

I would think that the state would have to show something to indicate intent ... perhaps the pipe in conjunction with residue, with unsmoked pot, etc.

There was no probable cause to ask to search the vehicle in the first place, but many are intimidated by aggressive cops , and he didn't have anything to hide anyway...

The officer did not need probable cause to ask for consent.

If the cop thought it smelled like MJ, then the pipe would be tested and upon the state finding that the pipe had no MJ residue, then the case must be dropped and the cop needs to personally apologize to the poster, for being wrong and for being a jerk.

Note that the state does not HAVE to test anything. It might strengthen their case by testing, but they are not legally required to do so.

Drug Paraphernalia Charge (Idaho)

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