Rolling paper containing marijuana is not drug paraphernalia

Filed under: Criminal Law, News by Contributor @ December 1, 2015

In a groundbreaking decision the Pennsylvania Superior Court vacated a conviction for possession of drug paraphernalia in Commonwealth v. Miller (November 20, 2015). The Defendant had been convicted for possession of a controlled substance and possession of drug paraphernalia after a marijuana cigarette was found between the driver’s seat and center console of his vehicle.

On appeal, the Defendant argued that since the burned wrappings of a marijuana cigarette were not contained on the list of items defined as drug paraphernalia by the legislature, the legislature could not have plausibly intended to expose a defendant to punishment for two crimes, possessing a small amount of marijuana and possession of drug paraphernalia, when he possessed nothing more than a half-smoked joint.

The court vacated the conviction for possession of drug paraphernalia, holding that the evidence was insufficient to support a verdict on possession of drug paraphernalia based solely on the burnt paper encasing the partially smoked marijuana cigarette. The Court reasoned that, pursuant to the Drug and Cosmetic Act, drug paraphernalia consists of “material of any kind which are used, intended for use or designated for use . . . in containing [or] inhaling . . . into the human body a controlled substance[.]” The Act does ┬ánot list the burnt paper surrounding a half-smoked marijuana cigarette – a common item used to hold/smoke marijuana- as an example of paraphernalia.

Further, when the legislature enacted the law regarding possession of a small amount of marijuana, it demonstrated an intention to exempt those who possess a small amount (30 grams or less) of marijuana from the more severe penalties associated with a conviction of marijuana and possession of drug paraphernalia. This is the first appellate opinion in recent memory finding that a particular item or substance was NOT drug paraphernalia, as in the past all other forms of ingestion of marijuana have uniformly been found to constitute Drug Paraphernalia under Pennsylvania law.

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