Possession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364

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lawstachesticker_vectorizedPossession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364

Under California Health and Safety Code Section 11364, it is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance. In order to convict, the prosecution needs to prove beyond a reasonable doubt that a person unlawfully possessed a device for unlawful smoking or injecting unlawful drugs, and knowledge of the presence and the nature of the device.

Device/Paraphernalia

A device can something commonly associated with drug use, such as pipes, syringes, bongs, rolling paper. It can also be a commonly used household objects such as a water bottle.

The code makes an exception for hypodermic needles. HS 11364(a) 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. And the code shall not apply to the possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source.

Possession

Possession can be actual or constructive. Actual possession means that a person has an immediate control over the object. For example, if a person has a pipe in his/her hand while pulled over, he/she has actual possession. But a constructive possession will also suffice for a conviction. Such a possession is commonly defined as an area over which you exercise control. If the paraphernalia is found in a person’s car trunk, he/she most likely had control over the car including the trunk.

Controlled Substance

The device must suitable for a use of a controlled substance. A controlled substances defined under HS 11364, include any 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.

These substances are cocaine, heroin, PCP, Opium, etc. Marijuana is not defined under any of the statutes above. A person should not be charged with a possession of marijuana paraphernalia under HS 11364.

Defenses

4th Amendment. The 4th amendment protects a person from unreasonable searches and seizures. If the police does not follow procedure, for example acquiring a search warrant, then the seized evidence should be excluded from trial. If the seized paraphernalia is excluded due to 4th amendment violation, then it would be impossible to convict a person with possession of paraphernalia. There are also other constitutional rights, that police must not infringe upon, such as Miranda Rights, which could lead to a dismissal of charges.

Lack of Possession. If a person did not have actual or constructive possession of the drugs, he should not be convicted of possession of paraphernalia under HS 11364. For example, if the paraphernalia was found in a person’s home, but in his roommates bedroom, where the person does not have authority to enter, then he should not be convicted under this code.

Lack of Knowledge. If the person does not have knowledge about how the item is to be used, then he should not be convicted under this code. For example, a person purchases a pipe at a tobacco smoke shop, but it turn out it is really a crack pipe. There is good argument that a person would not know that it a crack pipe, if he purchases it at a tobacco smoke shop, especially if the purchase receipt includes a crack pipe and some tobacco. The jury is the ultimate decision maker on whether you possessed the requisite knowledge.

Personal Use Exception. As stated above, if you have 10 or less syringes for personal use acquired from an authorized source, then you should not be convicted under this code.

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