When you hear of “paraphernalia”, there are probably a few commonly known items that come to mind: a bong, a heroin needle, a crack pipe, etc. The legal definition of paraphernalia though is extremely broad, and basically passes the decision as to whether an item is considered illegal paraphernalia to the prosecutor. In this article we will investigate some of the grey area of Georgia’s criminalization of drug-related objects, and how something as counter-intuitive as an apple could be criminal paraphernalia, and how something as obvious as a bong could be perfectly legal.
DRUG PARAPHERNALIA DEFINED
Paraphernalia is defined under Georgia law O.C.G.A. §16-13-32.2, Possession and Use of Drug Related Objects. It reads: “It shall be unlawful for any person to use, or possess with the intent to use, any object or materials of any kind for the purpose of 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 marijuana or a controlled substance.”
There are no strict guidelines given surrounding the definition of paraphernalia, and though in many cases it is common sense (bongs, roach clips, bubbler, grinder), there are other times where it is up to the prosecutor, judge, and jury to decide if an object fits the criteria. Broken down, the code basically says that anything that has any potential relationship at all is paraphernalia, provided that the individual knows of its drug-related potential and can be proved to have intentions to use the item in a drug-related manner.
Consider an apple. On its own, it is not a criminal item, or else all grocery stores in America would be raided immediately. It can be turned into a makeshift bong however if you push a pencil through the apple (or similar fruit), use the foil wrapper from a Hershey’s Kiss or other chocolate candy to form a bowl piece, poke a few small holes in the foil using the pencil for air flow, and put the foil bowl piece into the hole made from the pencil. Independently, an apple, pencil, and chocolate candy are harmless enough to be found in a child’s lunchbox. But if the prosecutor can prove that you know how to use them with drugs, they are now three misdemeanors.
“Proof” in this case is subjective- this could be proved in a fairly simple way such as using a picture of the defendant smoking an apple bong, but also could be “proven” by something as broad as stating that the defendant has engineering experience. The burden is on the prosecutor to spin that an item has drug-related potential and that the defendant has the potential and intent to use the item in a drug-related manner, and then it is on the judge or jury to decide if they agree.
Furthermore, the wording of this statute is so broad that the charge can also stick to anything that has any residue from a drug, generally under the “preparing” criteria from the statute. If you ash your bong and some gets on the table or even the middle compartment of your car, a prosecutor could theoretically call the item with residue or ash Paraphernalia and say that you used the table to pack the bong, or the middle compartment of your car to roll a blunt. Even your lighter could technically be Paraphernalia. While this may clearly be a stretch that a jury would find difficult to convict on, this charge now becomes a tool for the prosecutor to use during plea bargain negotiations. Imagine that you are charged with possession of marijuana with intent to distribute. In the absence of a paraphernalia charge in your indictment, the prosecutor may offer a plea deal where the reduce the possession with intent charge to a simple possession charge. If they have the paraphernalia charge in their toolbelt however, no matter how frivolous it may seem, they may instead offer to drop this charge but make no offer to reduce the possession with intent charge, leaving you with a less favorable plea bargain for your overall indictment. Also, it is important to remember that while the arresting officer may not have included paraphernalia charges on the arresting document, a prosecutor can add them on later making it more critical to hire a defense attorney for your case than it may appear at first glance.
Non Drug-Related Intent: If you are able to cast doubt on the prosecutor’s assertion that the items possessed were intended to be used with drugs, this charge falls apart. This strategy is easier or harder depending on the item in question. The apple in our above example could easily be spun as a nutritious snack. In a more difficult but still plausible explanation, a water bong’s intended use could be for smoking loose leaf tobacco, which is perfectly legal. Some items, like a marijuana grinder with residue inside of it, are significantly less likely to get off with this strategy.
Actual Possession vs Constructed Possession: Drug related objects can be “possessed” in two different ways: Actual Possession or Constructed Possession. Actual Possession is the more literal definition, in which an individual is physically holding the items or they are within arm’s reach. In Actual Possession, an individual could immediately produce or distribute drug-related objects. This can be as simple as having a grinder in your pocket. Constructed Possession is when you are not able to immediately produce the drugs, but you have reasonable access to possessing them in a hypothetical situation. An example of this could be if you share a home with others, and your roommate has a bong in their room. While you are not personally physically holding the bong, and may have never used it or have any interest in marijuana at all, you have access to it and could hypothetically use it. In the eyes of the law, you are technically in constructed possession of the bong in your roommate’s room and guilty of a misdemeanor. A talented defense attorney may be able to make a case that you did not actually have either actual or constructed possession of the item in question, and have the charge dropped.
Dropped in Plea Bargain: Paraphernalia charges are almost always linked with a Possession or Possession with Intent to Distribute charge. As such, they are one of the first things considered when negotiating a plea bargain- the prosecutor will often offer to drop the paraphernalia charge in exchange for pleading guilty to the possession or possession with intent charge. This is not always in your best interest; it is extremely important to consult with an experienced defense attorney before locking yourself into this exchange.
Appeal: If all else fails, a paraphernalia charge can be appealed. Because of the subjective nature of the statute, it is possible that an appellate judge may feel differently regarding an object’s intended use or criminal nature.
In 2015, Joseph Patrick Wright pled guilty to theft by taking, possession of tools during the commission of a crime, criminal damage to property, and possession of methamphetamine. The trial court sentenced him to five years of probation. In 2016, the State petitioned to revoke his probation on the ground that he had committed the new offenses of possession of methamphetamine, felony theft by taking, and possession of drug-related objects.
A sergeant with the Lamar County Sheriff’s Office testified that he was investigating a burglary at a cell phone tower. The sergeant went to the tower and saw signs of illegal entry into a storage trailer and footprints at the scene. He took pictures of the trailer and footprints. The victims provided the sergeant with a list of the missing items and their corresponding serial numbers. The victims also had a description of the vehicle used to take the items, and the sergeant put out a be-on-the-lookout (“BOLO”) for the vehicle.
The sergeant received a response to his BOLO in a neighboring county. He proceeded to the residence and found Wright about to be arrested on an unrelated charge. Wright was handcuffed in the back seat of a patrol vehicle. The sergeant observed that the truck in the driveway fit the description of the BOLO. He executed a search warrant and found that the equipment in the truck matched the serial numbers from the list given by the victims. He also found a “meth pipe” in the truck. The sergeant later interviewed Wright after his arrest and observed that Wright’s shoe matched the impression at the crime scene.
Wright did not own the residence where the sergeant located the truck. The truck’s registration did not match Wright either. When the sergeant started to testify that he ran the truck’s tag and that it matched Wright, defense counsel objected on hearsay grounds, and the trial court sustained the objection. The trial court ultimately only revoked Wright’s probation “based on the meth pipe.” The trial court revoked the balance of his probation, which was approximately three years and six months, based on a violation of a special condition of probation. Wright’s application for discretionary review was granted, and an appeal followed.
Wright argued that the trial court abused its discretion in finding that he possessed the methamphetamine pipe. He contended that no admissible evidence demonstrated that he possessed the pipe, and that the State only showed spatial proximity. The appellate court agreed.
Under OCGA § 16-13-32.2 (a), it is unlawful “for any person to use, or possess with the intent to use, any object or materials of any kind for the purpose of … inhaling, or otherwise introducing into the human body … a controlled substance.” The appeals court stated: “Where, as here, there is no evidence that the defendant was in actual possession of paraphernalia, the State must present evidence showing the defendant’s constructive possession. To prove constructive possession, the State was required to show some connection between the defendant and the paraphernalia other than spatial proximity. Thus, while the State’s burden of proof is lower in a probation revocation case, a probationer’s mere presence in the area where paraphernalia is found will not justify a revocation based on possession of paraphernalia, even under the more relaxed preponderance of the evidence standard.”
In this case, there was no admissible evidence showing that Wright possessed the methamphetamine pipe. Wright was in the back of a patrol car when the sergeant arrived at the residence, and no non-hearsay evidence showed that Wright owned the truck. The appellate court ruled that the trial court thus abused its discretion in revoking Wright’s probation based on possession of the pipe. Judgment was reversed.
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