A spoon, straw, pipe, scale, a syringe, and a baggie--all of these items have completely innocent purposes, entirely unrelated to illegal drug use. So, when does an innocent object become drug paraphernalia or narcotic equipment in the eyes of the police and prosecutors in Florida? How does a Florida prosecutor prove a paraphernalia case?
According to section 893.147(1)(b), Florida Statutes, “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia: ... [t]o inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.”
In determining whether an object is drug paraphernalia, the following is considered:
· Admissions and/or statements by an owner or by anyone in control of the object
. How close in proximity the object is to an illegal drug or controlled substance
· The existence of residue of a controlled substance on the object
· Instructions, descriptions, or advertising provided with the object concerning its use
· The manner in which the object is displayed for sale
· Whether the owner is a licensed distributor of or dealer in tobacco products
· Legitimate uses for the object in the community
· Expert testimony concerning its use
· Statements of a witness who may have observed the defendant
The prosecutor must introduce evidence that the person intended to use the object for an illicit purpose
Consider the case of Goodroe v. State: a police officer approached a woman who was standing in an intersection talking to a person in a car. The officer observed the woman drop a plastic bottle on the ground. The officer noticed that a hole had been burned into the side of the plastic bottle for inserting a glass tube and smoking crack cocaine. Based on his narcotics training and experience, he was able to identify the bottle as a crack cocaine pipe. Inside the bottle the officer saw residue.
The court found that the woman was not guilty of possessing paraphernalia. In this particular case, the state did not have the item tested. Therefore, there was no evidence presented that there was residue of a controlled substance on the alleged pipe. Also, there was no illegal drugs found on the woman (so there were no drugs found in close proximity).
The court found that the officer’s testimony that based on his training and experience the object was a crack pipe was not enough and, ultimately, the court held that there was insufficient evidence that the woman used the pipe for an illegal purpose. Goodroe v. State, 812 So. 2d 586, 587 (Fla. Dist. Ct. App. 2002).
If there is drug residue, then it is proof of intent to use
The presence of even a minuscule quantity of drug residue is sufficient circumstantial evidence to prove the element of intent to use. If the alleged paraphernalia tests negative for drug residue, or if the state never has the object tested, then the State must introduce some other evidence to demonstrate possession of the item with intent to use it for an illicit purpose. If the state does not have enough evidence, then a good criminal defense attorney can often beat the case.