Supreme Court Considers Whether A Sock Is Drug Paraphernalia

[ryoder 1,400]

The fail is strong with this one.[facepalm]

http://www.npr.org/2015/01/14/377266975/supreme-court-considers-whether-a-sock-is-drug-paraphernalia

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[BartsDaddy 4]

I would hope this is one of the times we could see pretty close to a one sided decision.

Handguns are only used to fight your way to a good rifle

[jakee 1,259]

A good exchange relating to the endless criminalisation of anything remotely connected to the actual criminal action:

Justice Samuel Alito returned to the sock: "It's really hard to believe that the Kansas statute actually regards as drug paraphernalia any thing that is used at any time to contain a controlled substance." So, you put the drug in a plastic bag — "that's one violation." Then the person puts the bag in a pocket — "that's another violation," and then in the glove compartment of the car — a third violation. "It can't really mean this."

Lawyer Kovner replied by asking: suppose the defendant had cocaine in his sock; under [Alito's] theory, he would not have been deportable for having drug paraphernalia.

"If he'd had cocaine in his sock," Justice Kagan shot back, "he would probably be convicted of possession of cocaine."

Do you want to have an ideagasm?

[mcordell 2]

I find that interesting considering I work in Kansas and at no point have I ever charged someone with paraphernalia for the container they had the drugs in. My prosecutors would never have charged that. Even a pipe isn't paraphernalia unless there is drug residue in it.

The article has to be bullshit however because the statute wouldn't support charging someone for having drugs in a sock. Here is Kansas statute that contains the test to determine if something is paraphernalia. Note #15

Quote

21-5711. Factors to consider when determining what is drug paraphernalia. (a) In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or person in control of the object concerning its use;

(2) prior convictions, if any, of an owner or person in control of the object, under any state or federal law relating to any controlled substance;

(3) the proximity of the object, in time and space, to a direct violation of K.S.A. 2012 Supp. 21-5701 through 21-5717, and amendments thereto;

(4) the proximity of the object to controlled substances;

(5) the existence of any residue of controlled substances on the object;

(6) direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of K.S.A. 2012 Supp. 21-5701 through 21-5717, and amendments thereto. The innocence of an owner or person in control of the object as to a direct violation of K.S.A. 2012 Supp. 21-5701 through 21-5717, and amendments thereto, shall not prevent a finding that the object is intended for use as drug paraphernalia;

(7) oral or written instructions provided with the object concerning its use;

(8) descriptive materials accompanying the object which explain or depict its use;

(9) national and local advertising concerning the object's use;

(10) the manner in which the object is displayed for sale;

(11) whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products;

(12) direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(13) the existence and scope of legitimate uses for the object in the community;

(14) expert testimony concerning the object's use;

(15) any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia; or

(16) advertising of the item in magazines or other means which specifically glorify, encourage or espouse the illegal use, manufacture, distribution or cultivation of controlled substances.

(b) The fact that an item has not yet been used or did not contain a controlled substance at the time of the seizure is not a defense to a charge that the item was possessed with the intention for use as drug paraphernalia.

Generally if something has a legitimate purpose (i.e. a sock) but is found with drugs in it, it isn't paraphernalia. It would be very difficult to find a prosecutor who was willing to argue a sock constitutes paraphernalia and had no other purpose. It's shaped like a foot! Ok, maybe a tube sock. Tube socks aren't shaped like a foot but that sure would be a long way to reach into an article of clothing to retrieve your pills.

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[ryoder 1,400]

mcordell

I find that interesting considering I work in Kansas and at no point have I ever charged someone with paraphernalia for the container they had the drugs in. My prosecutors would never have charged that. Even a pipe isn't paraphernalia unless there is drug residue in it.

All the documentation is here: http://www.scotusblog.com/case-files/cases/mellouli-v-holder/

And the sock is at the center of the documents I glanced over.
Too bad that common sense does not seem to be a prerequisite to be a prosecutor.

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[champu 1]

Thanks for supplying the statute. However, it doesn't say "unless it has any legitimate use" it says "as opposed to any legitimate use."

That paragraph means "it doesn't matter how good your explanation for having the object is if there is any evidence it was used for drugs rather than what you claim is its intended purpose."

I would be completely fine if that whole section you posted was summarily shitcanned.

[Boomerdog 0]

Quote

The fail is strong with this one.[facepalm]

yea...this one pancakes in. If Breyer, Ginsburg, and Breyer, and Hagan are asking these types of questions, it ain't looking good for the US's case.

Was there any mention that the "offender" had a legitimate medical prescription for the meds?

NOTE: They gave this case to an Assistant Solicitor General. It does not appear the Solicitor General wanted to go near this one.

[rehmwa 2]

BartsDaddy

I would hope this is one of the times we could see pretty close to a one sided decision.

Congress and the President quickly take action to redefine "socks" as a "Healthcare Device". Thus making socks available under the Universal Government Healthcare Plans for less than $75 per pair.

A new 50% tax on sockmakers was approved unanimously in Congress, with only 70 member abstaining from the vote as they decided they now had enough "side income" to start planning their vacations immediately on their laptops.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[mcordell 2]

champu

Thanks for supplying the statute. However, it doesn't say "unless it has any legitimate use" it says "as opposed to any legitimate use."

That paragraph means "it doesn't matter how good your explanation for having the object is if there is any evidence it was used for drugs rather than what you claim is its intended purpose."

I would be completely fine if that whole section you posted was summarily shitcanned.

No it means the court SHOULD look at the use of the object in terms of being paraphernalia vs any legitimate use of the object to determine if the object falls more on the contraband side than the legitimate use side.

A common container I find people carrying drugs in is a crown royal bag. I have never charged anyone with paraphernalia for the bag, however if I did, I would expect the court to look objectively at the bag and it's intended use. The intended use of the bag was to house the bottle that came in it. Once the bottle was empty and discarded, the bag served it's useful purpose. By then using the bag to hold drugs, I believe the court could argue the bag had more of a role of paraphernalia rather than an item with a legitimate use.

When it comes to a sock, unless the guy had both feet amputated, I think it would be hard to argue the value of the item leaned more toward housing drugs than a foot. This is especially true if the sock was on his foot and the drugs were hidden inside at the time. I'm not sure how that charge ever made it's way through the court successfully but I can assure you no prosecutor I ever worked with would have charged that. I could see a prosecutor tacking that on as leverage for a plea agreement "I'll drop the paraphernalia charge if you plead to X" but not actually charging it.

That being said, if the judge was a special kind of douche, they are not bound by the plea agreement. If the prosecutor made an agreement to drop the charge of paraphernalia in exchange for some sort of plea, the judge can reject the deal and tack the paraphernalia back on. That could happen if the smug asshole being charged acted like a dick in the courtroom too.

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[mcordell 2]

Andy908 and I haven't always agreed on things in these forums but I won't deny his (apparent) legal expertise when it comes to reading and interpreting statute (a statement I will undoubtedly regret making) so I would be curious what he thinks....if he could weigh in...

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[DanG 1]

If there are drugs in a Crown Royal bag, why do you need to make a paraphenalia charge? Don't you already have a drug possession charge?

What's the point of paraphenalia laws anyway? It's the drugs that should be regulated (although I personallything they should be legal), not things that could conceivably be used in connection with drugs.

- Dan G

[Anvilbrother 0]

Exactly, you gonna start arresting every one with a Gatorade bottle or an apple?

Postes r made from an iPad or iPhone. Spelling and gramhair mistakes guaranteed move along,

[mcordell 2]

DanG

If there are drugs in a Crown Royal bag, why do you need to make a paraphenalia charge? Don't you already have a drug possession charge?

What's the point of paraphenalia laws anyway? It's the drugs that should be regulated (although I personallything they should be legal), not things that could conceivably be used in connection with drugs.

Before I answer your question, I just wanted to make sure you saw where I just said I have never charged someone with paraphernalia for the container the drugs were in.....

now to answer your question, I wouldn't. I was hypothesizing as to what COULD theoretically be done.

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[DanG 1]

Quote

Before I answer your question, I just wanted to make sure you saw where I just said I have never charged someone with paraphernalia for the container the drugs were in.....

now to answer your question, I wouldn't. I was hypothesizing as to what COULD theoretically be done.

I didn't mean you personally.

In general, I meant why should the police be allowed to make paraphenalia charges (including pipes, etc.) when no drugs are found?

- Dan G

[jakee 1,259]

Because Reagan?

Or more seriously, because there are a fuckload of politicians out there who would never risk their image by voting against any anti-drug measure whatsoever. The attack ads write themselves - "This is Representative X, he voted against measures that would have kept drug addled scum with Bongs, crack-pipes and heroin needles away from YOUR CHILDREN!!!" Etc. etc.

Do you want to have an ideagasm?

[Andy9o8 0]

DanG

Quote

Before I answer your question, I just wanted to make sure you saw where I just said I have never charged someone with paraphernalia for the container the drugs were in.....

now to answer your question, I wouldn't. I was hypothesizing as to what COULD theoretically be done.

I didn't mean you personally.

In general, I meant why should the police be allowed to make paraphenalia charges (including pipes, etc.) when no drugs are found?

It's feel-good legislation that gets started in 1 jurisdiction, then everyone else thinks it's a bully idea, and so it goes viral from one state legislature to the next, and then the governors salute and sign it.
-- One, it lets cops bust & DAs prosecute people who didn't useta be prosecutable, because maybe they were just in the house or car of the guy with the drugs, but didn't have drugs on them - ah, but they had baggies, or papers or a pill case (like you carry Aspirin around in) or whatever in their pocket, and legally you've got the context of "totality of circumstances", so now they get charged. (And if the dude happens to be on probation or parole, now he's in jail, without bail, on a detainer pending the outcome of his new case, so he's really jacked up.)
--Two, it allows the cops & prosecutors to stack-on the charges. So what used to be a standard 1 or 2 charges per person 15 years ago is now a standard 4 or 5 charges on a petty possession case. The more charges, the greater the potential sentence the busted dude faces if all the charges are added up consecutively, so The Man gets a bit more leverage out in the courthouse corridors during plea-bargain negotiation time.

Anyhow, that's why.

[GeorgiaDon 340]

Quote

... it allows the cops & prosecutors to stack-on the charges. So what used to be a standard 1 or 2 charges per person 15 years ago is now a standard 4 or 5 charges on a petty possession case.

No kidding.

A professor here got himself in a major pile of shit. First, in a real dumbass move he tried to talk a grad student into picking up some prescription drugs for him while the student was in Mexico. The drugs (for which he had a prescription) are much cheaper in Mexico so he thought he'd give the student the money and prescription and just have it filled in Mexico. Of course it is illegal to have prescriptions filled out of country (a blatant move to protect drug company profit margins IMO). The student mention the arrangement to someone, and pretty quickly the campus police were involved and the professor was arrested. Now for the piling on and drug paraphernalia part. The campus police searched the prof's office, and discovered (gasp!!!) that he had his prescription drugs in his office, in one of those daily dispensing containers (the kind with that are a strip with a compartment for Monday, one for Tuesday, etc.) Now in Georgia (and I assume elsewhere) it is a felony to transport drugs, even your own prescription, outside of the original container in which they were dispensed by the pharmacy. Even though every drug store in the country sells those "daily reminder" containers, it is apparently a crime to take your pills from the original container and put them in those strips. Naturally the prof was charged with for soliciting the student to pick up his prescription in Mexico, but he was also charged for having his prescription in a daily use strip, and was charged for "drug paraphernalia" for being in possession of the strip. The case was settled with some plea bargain, and the guy is no longer teaching at the University, so I don't know what charges he finally plead to, but I suspect the "drug paraphernalia" charge was there just as a bargaining chip to leverage some sort of a deal.

So, just be aware that if you use one of those "daily" dispenser containers to keep track of whether or not you have taken your meds, you are committing a crime (at least in the eyes of the University of Georgia police).

Don

_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[rehmwa 2]

That's some messed up business, Dan. The professor's case could be a test case for several levels of judicial review.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[Andy9o8 0]

You know, that's funny. When you google it, you get lots of hits saying that exact same thing about the GA law. But being the curious type then I did a very QUICK search of the GA statutes, and to my reading - unless there's another applicable GA statute (or reg) that I didn't find - the patient to whom a controlled substance has been prescribed is not required to only keep it in its original container.

Here's what I found:

§ 16-13-75. Drugs to be kept in original container
Possession and control of controlled substances or dangerous drugs by anyone other
than the individuals specified in Code Section 16-13-35 or 16-13-72 shall be legal only if
such drugs are in the original container in which they were dispensed by the pharmacist
or the practitioner of the healing arts and are labeled according to Code Section 26-3-8.

Now, 16-13-72 doesn't apply to our discussion. But 16-13-35 seems to apply; it says:

§ 16-13-35. General registration requirements

....

(c) The following persons need not register and may lawfully possess controlled
substances under this article

...

(3) An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a Schedule V substance;....

----------------------------------------

Well, to my reading, "ultimate user" means the patient to whom the drug has been prescribed, and "lawful order of a practitioner" means a prescription. So I wonder if this is a misunderstanding that's become accepted as "truth" in GA, or if there's another applicable law or reg that I didn't find. (So that's your homework for tonight.)

[GeorgiaDon 340]

I'm not sure if this is what you are looking for, but here's a link to a news story on the case, which indicates he was charged with "three counts of possession of prescription drugs outside of the original container". Here is an article on the case from the campus newspaper. The article quotes the prof's attorney (Grant): "Grant said the charges involving not keeping drugs in an original container are common because most Georgians don't know it is illegal to store drugs out of their original prescription bottles."

What were the drugs in question? The police initially described the drugs as "narcotics" and "happy pills". Here again from the Red and Black article:
"Of the drugs found in Lance's office not in their original containers, one (Donepezil) is commonly used to treat Alzheimer's and the other two (Amlodipine Besylae and Benazepril and Losartan) are commonly used to treat high blood pressure."

I didn't find the article where I saw that the "loose pills out of their original containers" were in one of those daily dispenser strips, that might have been a local TV news story.

I do not know what the Georgia law actually says, but it seems the police interpret the law to say you can't have prescription drugs out of the original container, even if you are the person to whom the prescription was issued. It would not be the first time law enforcement has their own "take" on a law. Several years ago a local woman was stopped and ticketed for having an "obscene" bumper sticker ("I'm sick of all this Bushit"), even though the state Supreme Court had ruled the law she was ticketed under unconstitutional years before. It turned out the "handbook of law enforcement" used to teach police the law had never been updated to reflect the change, even though the handbook is supposed to be updated annually. It's not a safe assumption to assume the police must know the law better than you (the generic you, not Andy you) do.

Don

_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[Anvilbrother 0]

Quote

charged

.

Probably amended or thrown out by DA office.

Postes r made from an iPad or iPhone. Spelling and gramhair mistakes guaranteed move along,

[Andy9o8 0]

Via a bit more Google(-only) searching, I found a couple of appealed GA criminal cases. Long story short, they reference the same statutes I found, and seem to reinforce my conclusion that the GA law prohibiting possession of prescription controlled substances not in their original container only applies to people other than the person to whom they're prescribed. I remain open minded if anyone wants to take the time to dig deeper.

[stayhigh 2]

But in this case, observed Kagan — the former dean of the Harvard Law School — "he had four pills of Adderall, which if you go to half the colleges in America ... and just randomly pick somebody," you'd find Adderall.

I like Justice Kagan, she is young and she can still relate to what is going on with current society, especially at college and university, also she can be super funny. I think Obama made right choice for nominating her.

@ 2:22

https://www.youtube.com/watch?v=12Ix6u-EJ_8

Bernie Sanders for President 2016

[SkyDekker 1,145]

Andy9o8

Via a bit more Google(-only) searching, I found a couple of appealed GA criminal cases. Long story short, they reference the same statutes I found, and seem to reinforce my conclusion that the GA law prohibiting possession of prescription controlled substances not in their original container only applies to people other than the person to whom they're prescribed. I remain open minded if anyone wants to take the time to dig deeper.

Interesting.

So technically a family member helping their ailing mother or father taking medication could get arrested. The way that is written, only the "patient" can remove the medication of the packaging.

[mcordell 2]

SkyDekker

***Via a bit more Google(-only) searching, I found a couple of appealed GA criminal cases. Long story short, they reference the same statutes I found, and seem to reinforce my conclusion that the GA law prohibiting possession of prescription controlled substances not in their original container only applies to people other than the person to whom they're prescribed. I remain open minded if anyone wants to take the time to dig deeper.

Interesting.

So technically a family member helping their ailing mother or father taking medication could get arrested. The way that is written, only the "patient" can remove the medication of the packaging.

Only if they then took the drugs with them while in a non-prescription container. It says possession by someone other than the ultimate user, not removal by someone other than the ultimate user. It's also worth noting that only applied to controlled substances which means the medications have to fall into the controlled substance schedule so grandma's thyroid pill isn't going to get you in trouble.

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