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Are There Any Laws That Address Drug Paraphernalia?


The federal criminal code does not criminalize possession of drug paraphernalia. However, possession of drug paraphernalia can and has been seen as circumstantial evidence of a defendant’s intent in a drug conspiracy case.

Missouri & Illinois both criminalize the possession or sale or use of drug paraphernalia. In fact, Illinois’s criminal code has an entire chapter dealing with this issue, the Drug Paraphernalia Control Act. Prohibited acts regarding paraphernalia include possession or sale of an object knowing that it is going to be used, or under circumstances in which one reasonably should know that it will be used, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test analyze or, of course, ingest by inhaling or otherwise introducing into the human body a controlled substance or an imitation controlled substance. The penalties are worse if possession or sale is for a commercial purpose.

Possession or sale of drug paraphernalia is, for the most part, much less serious crimes. In Missouri, for example, it is a class A misdemeanor unless it is done for commercial purposes, in which case, it is a class E felony. In Missouri, an E felony is the lowest level of the felony, with a penalty range of zero to four years.

Can Police Execute A Warrantless Search Of A Vehicle Or Premises If They Suspect A Drug Offense?

The United States Constitution by way of the Fourth Amendment, as well as the Missouri & Illinois constitutions, guarantee that the people will be safe from unreasonable searches and seizures. Your home, in this instance, really is your castle. You are afforded the greatest and most reasonable expectation of privacy in your home. You have a lesser expectation according to the courts of privacy in your automobile and especially if it is on the roads, on the public highways. A warrantless search of your home or your automobile, or even your person, is always presumed to be unreasonable and therefore in violation of the Fourth Amendment guarantees regarding searches. However, there are recognized exceptions to that Fourth Amendment protection.

The most commonly used exception to the warrant requirement is consent. A police officer may pull you over for a traffic violation and ask for consent to search your car. If you give consent, that police officer may be able to search some, or all, of the areas in your car. It is very important, therefore, that your defense lawyer is knowledgeable about what is informed and voluntary consent. It is equally important that your defense lawyer is knowledgeable about how far a search can go on the basis of consent.

Law enforcement suspicion of criminal activity can be the basis for another exception to the warrant requirement. An old Supreme Court case called Terry v. Ohio forms the basis for this exception. A “Terry” search may be proper if the police have a reasonable suspicion based on “articulable facts” that there is a crime being committed. The search must be brief and non-intrusive, however, and limited to the specific suspicion based upon which it occurs. A pat down, for example, is a kind of Terry search. It is important that your defense lawyer knows this area of the law well. An “articulable fact,” for instance, must be more than just a mere hunch. And an “articulable” fact is one which the officer can describe and express.

Another exception to the warrant requirement may arise where law enforcement claims that an object was “in plain view.” Again, this is an area of the law that a good defense lawyer needs to know well. In order for law enforcement to be able to enlist this exception to the warrant requirement, the officer must be in a place lawfully. He can’t just climb over your back fence, or into your basement. If law enforcement pulls you over because of a claimed traffic violation on the highway or on the roads, she is perfectly within her right to pull that motorist over to investigate that traffic violation. However, he or she may not prolong that encounter beside the highway without having developed facts in addition to those forming the basis for the initial stop.

Another exception to the warrant requirement is a “search incident to arrest.” This exception is claimed frequently. If someone is arrested in and then removed from a car, the Supreme Court has held that the police cannot later search that car, unless they have reasonable cause to believe that there is evidence of a crime within that car. Moreover, search incident to arrest only permits a search within the arrested person’s “wingspan,” or within the area from which the person could reach a weapon (and potentially use it) or contraband (and potentially dispose of it).

Finally, an exception to the warrant requirement which is often cited in cases involving automobiles is the “inventory search.” Many law enforcement agencies have policies regarding inventory searches. Subsequent to a traffic stop and arrest, the car may be towed. If the law enforcement agency that tows your car has an inventory search policy, its agents or officers may be able to search the car on that basis. This is another area of the law that your lawyer must know and use not only as the potential basis for a motion to suppress evidence but also as the source of cross-examination questions and investigation cues.

For more information on Laws Addressing Drug Paraphernalia, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (314) 282-4188 today.

Kevin L. Schriener, ESQ.

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(314) 282-4188

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