Drug paraphernalia laws come under fire

Monday, November 3, 2003 | 12:00 a.m. CST; updated 10:05 a.m. CDT, Monday, July 7, 2008

A rose by any other name may smell as sweet, but a bong may still be illegal, regardless of its contents.

Recent sting operations by the Department of Justice, under the direction of U.S. Attorney General John Ashcroft, have targeted regional retail shops in Pennsylvania and Iowa along with manufacturers and national distributors in California and elsewhere for the sale of drug paraphernalia. Although targeted largely at online retailers, the enforcement and prosecution of federal drug paraphernalia law in those cases — code-named Operation Pipe Dreams and Operation Headhunter — are cause for concern for local shops selling “smoking accessories.”

Shirley Armstead, a public information officer for the Drug Enforcement Administration’s St. Louis division, could not comment on whether any investigations were under way in Missouri. She said no special task force or unit was looking into drug paraphernalia violations specifically but that such cases would be dealt with if the department became aware of them.

“If it comes to our attention that these people are selling drug paraphernalia illegally, then yes, we will investigate,” Armstead said.

In that event, Armstead said officers would follow a similar procedure as that used in Operation Pipe Dreams, including the possible use of sting or undercover operations.

“A guy can say all day that this is for tobacco use only,” Armstead said. “But if a reasonable person sees that this is not for tobacco use, it’s drug paraphernalia.”

“The people who have these shops should know what the laws are — cut and dry,” she said.

After drug paraphernalia laws passed in communities across the United States came under fire in the 1970s for being unconstitutionally vague, the Drug Enforcement Administration drafted a law in 1979 specific enough, it was hoped, to pass. Missouri adopted a version that was updated as part of the Comprehensive Drug Control Act of 1989. Federal drug paraphernalia law under Title 21 of the United States Code includes similar language.

In general, state and federal statutes prohibit the manufacture or sale of drug paraphernalia, and include detailed definitions, examples and exemptions. Violation under state law is a Class D felony, punishable by up to five years in prison and a $5,000 fine. Federal law allows for a maximum of three years in prison and a fine of up to $250,000.

The federal statute used in the justice department’s recent prosecutions defines “drug paraphernalia” as “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing ... ingesting, inhaling, or otherwise introducing into the human body a controlled substance... .” The list of 15 examples includes “water pipes,” “carburetor pipes,” bongs and wired cigarette papers, among others. Exempt is any item “traditionally intended for use with tobacco products, including any pipe, paper, or accessory.”

And there’s the rub. Local businesses such as Aardvarx, Sunshine Daydream Imports, Eye Candy and Dream Catchers sell glass pipes and other accessories as “tobacco products,” to customers who are at least 18. In many local shops, accessories are displayed in separate areas not visible from the regular retail space, and proof of age is often required to even view the merchandise.

But the precautions taken by these retailers are rendered moot by the interpretation of the statute used by federal prosecutors and their counterparts in the DEA — one which focuses on the “designed for use” clause, rather than the intent of the seller, bypassing the need to prove the knowledge or intent of the seller that the item be used illegally.

The argument — which U.S. attorneys in Pennsylvania have

used successfully in many of the Operation Pipe Dreams cases — takes advantage of an option in the law allowing for the use of expert testimony concerning the

use of particular items. Using the testimony of tobacconists, they argue that pipes and accessories seized in those cases have no legitimate use, as their design makes them unsuitable for regular tobacco use and is instead tailored for the consumption of illegal drugs such as marijuana.

Items covered by the prosecution’s interpretation include many glass pipes, bongs, electric pipes and “one-hitters” — small cylindrical pipes, often painted to look like cigarettes. Some of the items were what prosecutors termed “sneaky pipes” because they were disguised as innocuous items like flashlights or lipstick.

But prosecutors and judges in Missouri are not necessarily bound to follow the same course as their colleagues in Pennsylvania, said Steve Easton, associate law professor at MU and former U.S. attorney in North Dakota.

“It depends on what the prosecutors want to do — how aggressive law enforcement and prosecutors and folks want to be,” Easton said. “Just because they are pushing that argument in Pennsylvania doesn’t necessarily mean they’re going to want to push the same one in Columbia.”

He said U.S. attorneys in Missouri have some discretion when deciding what cases to pursue and how to prosecute them. Local priorities play large parts in that decision, but Easton said those priorities are always subject to change.

“If the attorney general tells you ‘this is what your priorities are...’ — the attorney general is the boss of the Department of Justice,” he said.

Easton said the Pennsylvania cases set some precedent for similar cases that could arise in Missouri, but not a binding one — the two states are part of different federal circuit courts. Thus, the local circuit court could reach a different decision, although the Pennsylvania cases could serve as an example of and support for similar arguments here.

“It’s going to have a fair amount of influence, but it’s not binding,” he said.

Locally, retailers are on more-solid ground, as the legal interpretation of state regulations used by Columbia law enforcement seems to mirror that of area stores. Sgt. Bryan Piester, of the Columbia Police Department’s Narcotics Unit, said officers occasionally check local businesses to make sure they comply with state law, but barring allusions to drugs or illegal usage, retailers can sell to customers of legal age.

“As long as it is a ‘smoking device for tobacco’ there’s really not too much we can do right now to enforce it,” Piester said. “If they abide by state law, they can continue to sell the items. When they violate that, and/or if state law were to change or the federal law starts getting a little more aggressive, we’ll look at that too.”

Piester said local businesses would receive fair warning if the department’s enforcement policy were to change.

“If it looks like there is the possibility, obviously we would give a warning to somebody,” he said.

Kevin Crane, Boone County prosecuting attorney, said the drug paraphernalia cases he sees are usually cut-and-dry — drug residue found in seized pipes leaves little doubt that they have been used illegally.

“I don’t recall ever prosecuting one of those businesses [for the sale of drug paraphernalia],” Crane said.

When asked if there were plans to change the way state drug paraphernalia laws were enforced locally, Crane said there is little local interest in doing so.

“I’ve only been called by [reporters]... on that question,” he said.

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