Paraphernalia
- Thread starter NikkiNumberNine
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TheWalrus30
Bluelighter
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- Apr 28, 2008
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Ok, I might be repeating some stuff, but maybe I'll add something new and helpful.
First I think the most important sections of the Federal Drug Paraphernalia law (U.S. Code Title 21 Section 863) are the parts which discuss 1) factors that are used in determining if an object fits the definition of drug paraphernalia (and if a business/person is selling drug paraphernalia) and 2) the exemption sections. I'll post them:
"(e) Matters considered in determination of what constitutes drug paraphernalia
In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1) instructions, oral or written, provided with the item concerning its use;
(2) descriptive materials accompanying the item which explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community; and
(8) expert testimony concerning its use.
(f) Exemptions
This section shall not apply to -
(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory."
It is imperative for a store-front or online retailer of glass pipes and things of the sort to make perfectly clear that these are only available for legal uses. As the statute states, places that are licensed to sell tobacco and derive a substantial part of their profits from tobacco sales are much less likely to be targeted. This is much easier to do with glass pipes, water pipes, etc. But when it comes to objects associated with snorting powders, injecting things into your body, or pipes that clearly are only to be used with a butane lighter, well, that's a little more sketchy. For people and businesses who want to sell glass pipes and things of the sort, don't just say in passing on your website or in your advertisements, "Oh yeah, these shouldn't be used for illegal stuff." Rather, actually design a website or a store as a tobacco shop/seller. I.e., don't break the law. And, as I said, probably better off not selling non-smoking paraphernalia.
Ok, the federal law (and I'm pretty much this is also true with state laws) does not explicitly prohibit the possession of drug paraphernalia without more. US Code Title 21 Section 863 states:
"(a) In general
It is unlawful for any person -
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
(3) to import or export drug paraphernalia."
The federal law is targeting people who sell drug paraphernalia, not people who possess it. It is not, to my knowledge, technically illegal to possess a glass pipe, a bong, or anything else. When it becomes illegal is when there is drug residue on it. So, basically, use it once, and it's now illegal to possess. So if you want to blow your own glass pipe and paint a marijuana leaf on it, go for it. Ride around town. Visit the police station. Whatever you want. But if an illegal substance leaves trace amounts on the thing, then you're in trouble. And, honestly, a police officer probably has probable cause to search your person and seize the pipe if he sees it. After tests are run and if those test come back negative for illegal substances on the pipe, then you can probably have it back. I would strongly advise against carrying something that looks like drug paraphernalia out in the open, even if it doesn't have any residue on it. Not worth the risk or the hassle.
First I think the most important sections of the Federal Drug Paraphernalia law (U.S. Code Title 21 Section 863) are the parts which discuss 1) factors that are used in determining if an object fits the definition of drug paraphernalia (and if a business/person is selling drug paraphernalia) and 2) the exemption sections. I'll post them:
"(e) Matters considered in determination of what constitutes drug paraphernalia
In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1) instructions, oral or written, provided with the item concerning its use;
(2) descriptive materials accompanying the item which explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community; and
(8) expert testimony concerning its use.
(f) Exemptions
This section shall not apply to -
(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory."
It is imperative for a store-front or online retailer of glass pipes and things of the sort to make perfectly clear that these are only available for legal uses. As the statute states, places that are licensed to sell tobacco and derive a substantial part of their profits from tobacco sales are much less likely to be targeted. This is much easier to do with glass pipes, water pipes, etc. But when it comes to objects associated with snorting powders, injecting things into your body, or pipes that clearly are only to be used with a butane lighter, well, that's a little more sketchy. For people and businesses who want to sell glass pipes and things of the sort, don't just say in passing on your website or in your advertisements, "Oh yeah, these shouldn't be used for illegal stuff." Rather, actually design a website or a store as a tobacco shop/seller. I.e., don't break the law. And, as I said, probably better off not selling non-smoking paraphernalia.
Ok, the federal law (and I'm pretty much this is also true with state laws) does not explicitly prohibit the possession of drug paraphernalia without more. US Code Title 21 Section 863 states:
"(a) In general
It is unlawful for any person -
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
(3) to import or export drug paraphernalia."
The federal law is targeting people who sell drug paraphernalia, not people who possess it. It is not, to my knowledge, technically illegal to possess a glass pipe, a bong, or anything else. When it becomes illegal is when there is drug residue on it. So, basically, use it once, and it's now illegal to possess. So if you want to blow your own glass pipe and paint a marijuana leaf on it, go for it. Ride around town. Visit the police station. Whatever you want. But if an illegal substance leaves trace amounts on the thing, then you're in trouble. And, honestly, a police officer probably has probable cause to search your person and seize the pipe if he sees it. After tests are run and if those test come back negative for illegal substances on the pipe, then you can probably have it back. I would strongly advise against carrying something that looks like drug paraphernalia out in the open, even if it doesn't have any residue on it. Not worth the risk or the hassle.
Johnny1
Bluelight Crew
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- Sep 9, 2003
- Messages
- 3,290
TheWalrus30 said:
TheWalrus30, how do you reconcile your above paragraph with the following California code sections? They do not require use or residue, and instead focus on the intended purpose of the object.
HEALTH AND SAFETY CODE
SECTION 11000-11033
11014.5. (a) "Drug paraphernalia" means all equipment, products and
materials of any kind which are designed for use or marketed 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 division. It includes, but is not limited to:
(1) Kits designed for use or marketed 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 designed for use or marketed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices designed for use or marketed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment designed for use or marketed for use in
identifying, or in analyzing the strength, effectiveness, or purity
of controlled substances.
(5) Scales and balances designed for use or marketed for use in
weighing or measuring controlled substances.
(6) Containers and other objects designed for use or marketed for
use in storing or concealing controlled substances.
(7) Hypodermic syringes, needles, and other objects designed for
use or marketed for use in parenterally injecting controlled
substances into the human body.
(8) Objects designed for use or marketed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as:
(A) Carburetion tubes and devices.
(B) Smoking and carburetion masks.
(C) 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.
(D) Miniature cocaine spoons, and cocaine vials.
(E) Chamber pipes.
(F) Carburetor pipes.
(G) Electric pipes.
(H) Air-driven pipes.
(I) Chillums.
(J) Bongs.
(K) Ice pipes or chillers.
(b) For the purposes of this section, the phrase "marketed for use"
means advertising, distributing, offering for sale, displaying for
sale, or selling in a manner which promotes the use of equipment,
products, or materials with controlled substances.
(c) In determining whether an object is drug paraphernalia, a
court or other authority may 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) Instructions, oral or written, provided with the object
concerning its use for ingesting, inhaling, or otherwise introducing
a controlled substance into the human body.
(3) Descriptive materials accompanying the object which explain or
depict its use.
(4) National and local advertising concerning its use.
(5) The manner in which the object is displayed for sale.
(6) 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 or dealer of tobacco products.
(7) Expert testimony concerning its use.
(d) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of the section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
...
HEALTH AND SAFETY CODE
11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within in the city, for the period commencing January 1,
2005, and ending December 31, 2010, subdivision (a) shall not apply
to the possession solely for personal use of 10 or fewer hypodermic
needles or syringes if acquired from an authorized source.
TheWalrus30
Bluelighter
- Joined
- Apr 28, 2008
- Messages
- 82
Well, Johnny1, thank you for the question.
First off, I was, as you'll see if you read back through my post (or even just glance at it), discussing federal law. I didn't make a single statement about California law. I'm not particularly familiar with California law actually (or that of any number of states). That's why I explicitly said I was discussing federal law and though I believed most states had similar laws, I admitted I didn't know for sure.
Second, you cut off a rather important part of the paragraph you referred to in my previous post. I'll re-post that part again just so there's no confusion:
"And, honestly, a police officer probably has probable cause to search your person and seize the pipe if he sees it. After tests are run and if those test come back negative for illegal substances on the pipe, then you can probably have it back. I would strongly advise against carrying something that looks like drug paraphernalia out in the open, even if it doesn't have any residue on it. Not worth the risk or the hassle." (emphasis added).
Third, federal law, like California state law, seems to focus on the marketed use of the paraphernalia and the use for which it was designed. And, like the federal law, it includes a number of things that can be taken into consideration when trying to determine if a certain object is "drug paraphernalia." Really, there aren't much substantive differences between the California law and Federal law now that I've gotten a chance to look at it.
The only difference, and I do admit it's an important one, is that, unlike the federal law, California does explicitly state that mere possession of statutorily defined "drug paraphernalia" is against the law. This may seem daunting, but remember that the state would have to prove, beyond a reasonable doubt, that you intended to use your residue free glass pipe (for instance) to ingest illegal substances. It's a little bit easier to prosecute the people who sell the stuff. The web pages and stores often use marketing that implicitly acknowledges that the objects are for use with illegal drugs. So even though they're not shipped out with residue on them, there is a way to prove the intent of the store owners by other means. But how would you go about proving, beyond a reasonable doubt, that a single person with a single residue-free glass pipe intended to use the object to ingest illegal drugs? To get more specific, the government would have to prove that the defendant has an object "designed for use or marketed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body." This is a bit trickier because most places one might buy such an object from likely markets or designs it for illegal uses. However there are two things I'd like to note:
1) The quotation you have from me says that you blow your own glass pipe. So I'm not saying that you should go buy a bong from your local head shop and go parading it around. I'm saying that you'd probably be ok if you produced your own glass pipe just for taunting police (however I again caution against doing that, in part to what I will explain a little bit later).
2) Can the police, if they arrest you, really prove where you got it from? If they can't, it'd be pretty damn difficult to prove that the object was marketed or designed for illegal use.
Ok, now here's the fun part of the California drug laws (thanks for bring it up because it really it interesting). While you are right that it is possible for a residue-free pipe could be considered drug paraphernalia and, thus, could be illegal, did you bother to look at possible penalties?
I reference California HEALTH AND SAFETY CODE SECTION 11364-11376. It goes further into drug paraphernalia, and how, unless authorized by law, it's illegal to have it. So we're told it's illegal, but we're still waiting for the penalty. Well, Section 11364.7 gets us started. Section 11364.7(b)-(d) deal specifically with people who manufacture drug paraphernalia and people who sell it to minors or have a state liquor license and manufacture or sell paraphernalia. It lays out the penalties too. However only 11367.7(a) and 11367.7(e) say anything about someone who possess paraphernalia. (a) states:
" Except as authorized by law, any person who delivers,
furnishes, or transfers, possesses with intent to deliver, furnish,
or transfer, or manufactures with the intent to deliver, furnish, or
transfer, drug paraphernalia, knowing, or under circumstances where
one reasonably should know, that it will be used to plant, propagate,
cultivate, grow, harvest, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance, except as provided in subdivision (b), in
violation of this division, is guilty of a misdemeanor."
So, really, (a) only tells us that it's a misdemeanor if you possess it with intent to deliver, furnish, or transfer...drug paraphernalia, knowing, or under the circumstances where one should reasonably shoudl know, that... etc. So pure possession, without an intent to deliver, furnish, or transfer is NOT a misdemeanor.
Then we get down to 11364.7(e) and we FINALLY find out was the penalty is for just possessing drug-residue-free drug paraphernalia:
"All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471."
So there you go. As I said, if you go waving around your pipe, a police officer can take it away. The only think I was wrong (well, not so much wrong as uninformed) about is that in California, there is a specific law that says they can take it away and not give it back.
So, I again warn you, don't go waving a pipe around in a police officers face, because he can take it away from you. However, if you're not selling it to transferring it to someone else, and if it has no drug residue, as far as I know (at least under Federal and California law) you cannot be lawfully arrested.
Thanks for the question Johnny. Very interesting law. If you have any other inquiries or need anymore clarification (and you might because this was long and rambling at points), please feel free to ask.
First off, I was, as you'll see if you read back through my post (or even just glance at it), discussing federal law. I didn't make a single statement about California law. I'm not particularly familiar with California law actually (or that of any number of states). That's why I explicitly said I was discussing federal law and though I believed most states had similar laws, I admitted I didn't know for sure.
Second, you cut off a rather important part of the paragraph you referred to in my previous post. I'll re-post that part again just so there's no confusion:
"And, honestly, a police officer probably has probable cause to search your person and seize the pipe if he sees it. After tests are run and if those test come back negative for illegal substances on the pipe, then you can probably have it back. I would strongly advise against carrying something that looks like drug paraphernalia out in the open, even if it doesn't have any residue on it. Not worth the risk or the hassle." (emphasis added).
Third, federal law, like California state law, seems to focus on the marketed use of the paraphernalia and the use for which it was designed. And, like the federal law, it includes a number of things that can be taken into consideration when trying to determine if a certain object is "drug paraphernalia." Really, there aren't much substantive differences between the California law and Federal law now that I've gotten a chance to look at it.
The only difference, and I do admit it's an important one, is that, unlike the federal law, California does explicitly state that mere possession of statutorily defined "drug paraphernalia" is against the law. This may seem daunting, but remember that the state would have to prove, beyond a reasonable doubt, that you intended to use your residue free glass pipe (for instance) to ingest illegal substances. It's a little bit easier to prosecute the people who sell the stuff. The web pages and stores often use marketing that implicitly acknowledges that the objects are for use with illegal drugs. So even though they're not shipped out with residue on them, there is a way to prove the intent of the store owners by other means. But how would you go about proving, beyond a reasonable doubt, that a single person with a single residue-free glass pipe intended to use the object to ingest illegal drugs? To get more specific, the government would have to prove that the defendant has an object "designed for use or marketed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body." This is a bit trickier because most places one might buy such an object from likely markets or designs it for illegal uses. However there are two things I'd like to note:
1) The quotation you have from me says that you blow your own glass pipe. So I'm not saying that you should go buy a bong from your local head shop and go parading it around. I'm saying that you'd probably be ok if you produced your own glass pipe just for taunting police (however I again caution against doing that, in part to what I will explain a little bit later).
2) Can the police, if they arrest you, really prove where you got it from? If they can't, it'd be pretty damn difficult to prove that the object was marketed or designed for illegal use.
Ok, now here's the fun part of the California drug laws (thanks for bring it up because it really it interesting). While you are right that it is possible for a residue-free pipe could be considered drug paraphernalia and, thus, could be illegal, did you bother to look at possible penalties?
I reference California HEALTH AND SAFETY CODE SECTION 11364-11376. It goes further into drug paraphernalia, and how, unless authorized by law, it's illegal to have it. So we're told it's illegal, but we're still waiting for the penalty. Well, Section 11364.7 gets us started. Section 11364.7(b)-(d) deal specifically with people who manufacture drug paraphernalia and people who sell it to minors or have a state liquor license and manufacture or sell paraphernalia. It lays out the penalties too. However only 11367.7(a) and 11367.7(e) say anything about someone who possess paraphernalia. (a) states:
" Except as authorized by law, any person who delivers,
furnishes, or transfers, possesses with intent to deliver, furnish,
or transfer, or manufactures with the intent to deliver, furnish, or
transfer, drug paraphernalia, knowing, or under circumstances where
one reasonably should know, that it will be used to plant, propagate,
cultivate, grow, harvest, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance, except as provided in subdivision (b), in
violation of this division, is guilty of a misdemeanor."
So, really, (a) only tells us that it's a misdemeanor if you possess it with intent to deliver, furnish, or transfer...drug paraphernalia, knowing, or under the circumstances where one should reasonably shoudl know, that... etc. So pure possession, without an intent to deliver, furnish, or transfer is NOT a misdemeanor.
Then we get down to 11364.7(e) and we FINALLY find out was the penalty is for just possessing drug-residue-free drug paraphernalia:
"All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471."
So there you go. As I said, if you go waving around your pipe, a police officer can take it away. The only think I was wrong (well, not so much wrong as uninformed) about is that in California, there is a specific law that says they can take it away and not give it back.
So, I again warn you, don't go waving a pipe around in a police officers face, because he can take it away from you. However, if you're not selling it to transferring it to someone else, and if it has no drug residue, as far as I know (at least under Federal and California law) you cannot be lawfully arrested.
Thanks for the question Johnny. Very interesting law. If you have any other inquiries or need anymore clarification (and you might because this was long and rambling at points), please feel free to ask.
Johnny1
Bluelight Crew
- Joined
- Sep 9, 2003
- Messages
- 3,290
Of course I glanced at your post, TheWalrus30. 
I knew you were talking about federal law, but in the paragraph I quoted there was the hint of a suggestion that it might be completely legal to possess paraphernalia as a citizen, as opposed to selling it. I wanted to make sure the state vs. federal distinction was addressed; I am not aware of other states' laws in this regard.
Practically-speaking, state charges make up the bulk of U.S. drug-related charges, most people here don't have the resources to hire the best counsel, and the discovery of even unused paraphernalia could lead to body or vehicle searches which could then yield evidence of further criminal activity. I wanted to make sure that was addressed.
I admire your ability to quickly research the penalties. I was aware that there are not criminal penalties for mere possession. However, there are a couple provisions under California law I am aware of that could prove a bit of a dangerous trap for someone who might think the legal-to-possess concept of paraphernalia applies in all circumstances. The more severe section makes it a felony to bring paraphernalia into a prison, jail, or work camp. The other section uses the possession of paraphernalia as indicia of criminal loitering.
Also, could not possession of paraphernalia be used as part of the prosecution's case to convict a defendant for possession or of controlled substances?
I knew you were talking about federal law, but in the paragraph I quoted there was the hint of a suggestion that it might be completely legal to possess paraphernalia as a citizen, as opposed to selling it. I wanted to make sure the state vs. federal distinction was addressed; I am not aware of other states' laws in this regard.Practically-speaking, state charges make up the bulk of U.S. drug-related charges, most people here don't have the resources to hire the best counsel, and the discovery of even unused paraphernalia could lead to body or vehicle searches which could then yield evidence of further criminal activity. I wanted to make sure that was addressed.
I admire your ability to quickly research the penalties. I was aware that there are not criminal penalties for mere possession. However, there are a couple provisions under California law I am aware of that could prove a bit of a dangerous trap for someone who might think the legal-to-possess concept of paraphernalia applies in all circumstances. The more severe section makes it a felony to bring paraphernalia into a prison, jail, or work camp. The other section uses the possession of paraphernalia as indicia of criminal loitering.
Also, could not possession of paraphernalia be used as part of the prosecution's case to convict a defendant for possession or of controlled substances?
TheWalrus30
Bluelighter
- Joined
- Apr 28, 2008
- Messages
- 82
I understand.
Yes, I definitely don't think it's ever safe for police to see you with paraphernalia, even if it's brand new. Because, fact is, as I think I stated originally, that'd probably be enough for probable cause to search your person for actual drugs. Where there's smoke there's fire, right? And, realistically, who in the world is going to have a glass pipe and never use an illegal substance in it? I was just playing with the out bounds of the laws. Practically, no matter how clean or new, paraphernalia is going to lead police to other stuff. So do not ever, ever, ever let them see you with it. Although maybe it'd be fun to have your old, always-been-drug-free-doesn't-know-what-pot-smells-like granny walk by the police station puffing on a brand new bubbler filled with tobacco...Ok..nah. Still not good.
Don't trust police. Don't think police won't make something out of nothing, no matter how innocent. Despite the humor I find in it, police won't find it funny if you parade around with a bunch of unused potential drug paraphernalia just to show them up. If police want to detain you, they can ALWAYS find a reason. And, as you stated Johnny, bringing paraphernalia into all kinds of places can make it a much more serious thing (in lots of states I assume). I was just dealing with simple possession. I didn't see that specifically in the California law, but if you say it's there I'll take your word for it. Damn hard to sift through it. Can't they just call the criminal code a "criminal code" instead of "Healthy and Safety Code"? That's just one of many nitpicks I have with it.
Anyway, as to your last question, my first instinct is to say, "Yes." Unused drug paraphernalia could be used as evidence against you in a possession case, or something of the like. My second instinct is to say, no, though. But that's probably more shaped by my beliefs in regards to the law and criminal procedure. I just don't think that possession of something that does not contain any residue of the drug you are accused of possessing could possibly be relevant to determining if you possessed the drug. I suppose if police caught you about to load up a new pipe (or whatever) with the illegal substance it'd be relevant. But then they could probably find trace amounts on it too in that case. They also couldn't use evidence that sometime in the past you possessed drug-residue-free paraphernalia. This is because generally "prior bad acts" cannot be used against a defendant. (Rule Evid. 404(b) I believe...at least in federal courts and in lots of states that use basically the same form of rules of evidence..don't know which states do and which don't, though, so that Rule number shouldn't be considered scripture by any stretch). They are considered overly prejudicial. There are general caveats, though. Technically, prior bad acts ARE admissible, but they cannot be used to show someone committed a crime. That's unclear. What I mean is the prosecution can't say, "See, he owned a bong last year. We know that. And he was convicted of possession 6 months ago. So he MUST HAVE been guilty of possession this time!" However, prior bad acts can be introduced to show things like motive, intent, planning, opportunity, knowledge (and other things related to those). So, for instance, if you get caught with a back of marijuana and you try to say you don't know how it got there and you don't even know what it's used for, the prosecutor can ask, "But didn't you have glass bong seized from you last year?" or "You were caught smoking marijuana last year, were you not? Did you not know what it was then either?" So it depends upon the exact charge and the defense you're using too.
So I guess my conclusion is, as all good legal conclusions are, it depends. There's a chance it wouldn't hurt you, but there's also a chance it could. So, again, better to be safe, and even a little paranoid, to protect yourself.
Yes, I definitely don't think it's ever safe for police to see you with paraphernalia, even if it's brand new. Because, fact is, as I think I stated originally, that'd probably be enough for probable cause to search your person for actual drugs. Where there's smoke there's fire, right? And, realistically, who in the world is going to have a glass pipe and never use an illegal substance in it? I was just playing with the out bounds of the laws. Practically, no matter how clean or new, paraphernalia is going to lead police to other stuff. So do not ever, ever, ever let them see you with it. Although maybe it'd be fun to have your old, always-been-drug-free-doesn't-know-what-pot-smells-like granny walk by the police station puffing on a brand new bubbler filled with tobacco...Ok..nah. Still not good.
Don't trust police. Don't think police won't make something out of nothing, no matter how innocent. Despite the humor I find in it, police won't find it funny if you parade around with a bunch of unused potential drug paraphernalia just to show them up. If police want to detain you, they can ALWAYS find a reason. And, as you stated Johnny, bringing paraphernalia into all kinds of places can make it a much more serious thing (in lots of states I assume). I was just dealing with simple possession. I didn't see that specifically in the California law, but if you say it's there I'll take your word for it. Damn hard to sift through it. Can't they just call the criminal code a "criminal code" instead of "Healthy and Safety Code"? That's just one of many nitpicks I have with it.
Anyway, as to your last question, my first instinct is to say, "Yes." Unused drug paraphernalia could be used as evidence against you in a possession case, or something of the like. My second instinct is to say, no, though. But that's probably more shaped by my beliefs in regards to the law and criminal procedure. I just don't think that possession of something that does not contain any residue of the drug you are accused of possessing could possibly be relevant to determining if you possessed the drug. I suppose if police caught you about to load up a new pipe (or whatever) with the illegal substance it'd be relevant. But then they could probably find trace amounts on it too in that case. They also couldn't use evidence that sometime in the past you possessed drug-residue-free paraphernalia. This is because generally "prior bad acts" cannot be used against a defendant. (Rule Evid. 404(b) I believe...at least in federal courts and in lots of states that use basically the same form of rules of evidence..don't know which states do and which don't, though, so that Rule number shouldn't be considered scripture by any stretch). They are considered overly prejudicial. There are general caveats, though. Technically, prior bad acts ARE admissible, but they cannot be used to show someone committed a crime. That's unclear. What I mean is the prosecution can't say, "See, he owned a bong last year. We know that. And he was convicted of possession 6 months ago. So he MUST HAVE been guilty of possession this time!" However, prior bad acts can be introduced to show things like motive, intent, planning, opportunity, knowledge (and other things related to those). So, for instance, if you get caught with a back of marijuana and you try to say you don't know how it got there and you don't even know what it's used for, the prosecutor can ask, "But didn't you have glass bong seized from you last year?" or "You were caught smoking marijuana last year, were you not? Did you not know what it was then either?" So it depends upon the exact charge and the defense you're using too.
So I guess my conclusion is, as all good legal conclusions are, it depends. There's a chance it wouldn't hurt you, but there's also a chance it could. So, again, better to be safe, and even a little paranoid, to protect yourself.