As a criminal defense attorney in a bustling college town, I am often asked how State College’s head shops and mom and pop convenience stores can get away with selling bongs, bowls, vaporizers, empty plastic dime bags and the like. This is a common question among people who find themselves charged with the ungraded misdemeanor known as “possession of drug paraphernalia,” along with a charge of possession of a small amount of marijuana. These clients usually say something like, “I knew it was illegal to have weed, but I didn’t think it was a separate crime to have a bowl, when you can buy one at Jamaica Junction.“
The simple explanation is that head shops are not actually selling drug paraphernalia. They are selling water pipes, glass tobacco novelty pipes and little, plastic jewelry bags. That is why all head shops have strict rules banning references to illegal drugs by employees and customers. Head shops may legally sell these items during the era of Marijuana Prohibition for the same reason that it was perfectly legal to buy and sell wine glasses and beer mugs during America’s failed experiment with Alcohol Prohibition. You could use wine glasses for grape juice, you could use beer mugs for root beer floats, and you can use a smoking device for tobacco.
Items sold in head shops only become drug paraphernalia after people leave the store and employ them in an illegal manner. Pursuant to 35 Pa.C.S.A. § 780-113(a)(32) of the Pennsylvania Drug Device and Cosmetic Act, drug paraphernalia is defined as a device, the purpose of which is to plant, propagate, cultivate, grow, harvest, manufacture, compound, produce, process, prepare, test, analyze, pack, re-pack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance. Thus, the items really do not become “drug paraphernalia,” unless and until there is some tangible proof that one planned to use said item in a manner, which violates the Drug Device and Cosmetic Act. That tangible proof is usually the presence of illegal drugs with the paraphernalia, or THC laced resin on smoking devices.
When it comes to head shops, I am reminded of a line in the famous Bertolt Brecht and Kurt Weil song “Die Moritat von Mäckie Messer,” from “The Three Penny Opera.” A loosely translated version of the song is known in English as “Mack the Knife,” which Gen-Xers will remember as the basis for the theme song of a 1980s McDonald’s character known as “Mac Tonight.” The line goes “Denn ein Haifisch ist kein Haifisch, wenn man’s nicht beweisen kann,” or “Because a shark is not a shark when you can’t prove it.”
Matt McClenahen is a criminal defense attorney in State College, Pennsylvania. Before earning his law degree, he studied German at Penn State. He is old enough to remember Mac Tonight. http://www.mattmlaw.com/Criminal-Defense-Overview/Drug-Possession.shtml
“Die Moritat von Mäckie Messer” http://www.youtube.com/watch?v=BtZT0eP6bYI