PARAPHERNALIA LAWS REQUIRE LINK TO DRUGS

Delaware's drug paraphernalia law lists dozens of items, from pipes
and small spoons used to ingest drugs to containers used to store
drugs, that are illegal -- as long as authorities can prove they are
intended for drug use. In most cases, that means a merchant or user
must say the items are drug-related, or police must find drugs near
the items or drug residue in them to consider them "drug paraphernalia."

The proof-of-intent component makes it particularly hard to prosecute
merchants who sell drug paraphernalia -- from operators of
marijuana-oriented "head shops" that sell pipes and bongs to corner
stores that sell makeshift crack pipes and baggies for drug
distribution. That is why most paraphernalia charges are filed
against users caught with drugs as well as paraphernalia, state
Attorney General's Office spokeswoman Lori Sitler said.

Targeting dealers

Capt. Chip Simpson, commander of the Delaware State Police special
investigations division, which includes the drug unit, said troopers
spend most of their time going after dealers who have cocaine and
heroin -- not just the equipment to use it.Advertisement

"Any enforcement we do of paraphernalia [laws] is complaint-driven,"
he said. "If we receive citizens' complaints about a store, we'll
investigate it, but it's not something we actively seek out."

Some kind of link to drugs is needed to trigger a paraphernalia
arrest. For example, having a scale displayed near pipes might help
authorities prove a merchant's intent to sell the items to drug
dealers, Simpson said. Selling a pipe decorated with a marijuana leaf
also could help, indicating the pipe is intended for smoking
marijuana rather than legal tobacco.

Too many bags

When Wilmington police raided Quisqueya Deli Grocery in July, the
sheer volume of small bags they found helped police decide the
merchants weren't selling the bags to coin collectors or craftsmen
who store beads for necklaces. Ultimately, the owner of that shop was
placed in a one-year first-time offender program.

The operators of an alleged head shop that was raided in Dover
earlier in the year were charged under the federal paraphernalia law
after they also were charged with being part of a marijuana
distribution ring. Without the pot-dealing charges, the government
would have not had a paraphernalia case, state police Lt. Bruce Von
Goerres said.

Colm F. Connolly, U.S. Attorney for Delaware, said the Dover case,
which is yet to be decided, is the first time the federal
paraphernalia charge has been used in this state. Police agencies
throughout the state have been told that federal prosecutors would
like to see it used more often.

Leaving a trail

The FBI thinks that following the trail of suspected drug
paraphernalia can lead to arrests of drug-gang members. A 2003 FBI
report used an example of an operation in and around Baltimore that
busted 80 drug dealers and got 30 stores closed by monitoring a link
between sales of items that can be used as paraphernalia and drug trafficking.

Most local authorities, however, think that no amount of
paraphernalia enforcement is going to stop people from smoking crack
or pot. Beverage cans, for example, are used to smoke pot and crack.
The can is emptied, then several small holes are pierced in the
concave bottom, which holds the drug. The can is held upside down,
then the drugs are lit and inhaled through the mouthhole.

"Back when I was a public defender, when crack first came out, people
were smoking crack out of a Bic pen," Widener University Law
Professor Jules Epstein said.

Von Goerres said he painstakingly tries to make paraphernalia charges
stick, sometimes even sending the most rudimentary of homemade pipes
to the state Medical Examiner's Office for analysis.

"If it comes back positive for marijuana or cocaine, it's
paraphernalia," he said. "If it comes back negative, it's just a Coke
can with a bunch of holes punched in it."