According to a Pittsburgh Post-Gazette article, a Pittsburgh criminal defense attorney was representing a client charged with drug possession and other offenses at a suppression hearing before an Allegheny County judge, and the lawyer questioned her client's wife about a small wooden box. The wife admitted that the box was hers, and upon opening the box in court, it was discovered that the box contained a straw with heroin residue on the end. The problem for the lawyer is that the straw and box are considered "drug paraphernalia" under Pennsylvania law, which means that it was illegal for the lawyer to be in possession of those items even if the lawyer was introducing the items as evidence at the hearing. The police and prosecutors routinely handle such items in drug delivery and drug possession hearings, but the rules are sometimes different for defense lawyers.
What is "drug paraphernalia"?
In this case, a straw and a small wooden box are drug paraphernalia. Many common household or office items can be considered "drug paraphernalia" or contraband. In many Penn State marijuana possession cases, students are charged with possession of paraphernalia because they have sandwich baggies, rolling papers, and scales in their dorm rooms.
Pennsylvania law defines drug paraphernalia as "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 the Pennsylvania Drug Act." Since the straw in this case contained heroin residue, it was clear that the straw had been used to ingest marijuana and thereby constituted drug paraphernalia. It is the way that an item is used or intended to be used that makes it illegal to possess.
Pipe is a Pipe
I once represented a Penn State student that was charged by the university police with possession of drug paraphernalia under 35 P.S. § 780-113(a)(32) for a pipe. My client adamantly denied that he had ever used the pipe to smoke marijuana and insisted that he had only smoked legal substances. An initial field test conducted by the officer showed that the residue in the pipe contained THC, meaning it had been used to smoke marijuana. The officer filed criminal charges before he received the forensic lab report results from the Pennsylvania State Police for the pipe residue. When the lab report was received, it evidenced that my client had been truthful because the residue did not contain marijuana, so the pipe had not been used to smoke weed. Clearly, the field test used by the officer was a false positive, so the charges had been filed prematurely. I asked the Centre County prosecutor to dismiss the charge based upon the lab report results, but my request was denied. I had to file a pretrial motion to suppress and dismiss the charge to argue my point. Finally, the assistant district attorney acquiesced and conceded that the pipe was not drug paraphernalia because it had not been used to inhale or ingest marijuana. In this case, a pipe simply was a pipe and not a marijuana smoking device. The scale that I routinely use in my office for mailing purposes is not drug paraphernalia because the scale is not used with the intent to weigh marijuana or other controlled substances.