Statutes updated from Official Statutes on: January 26, 2022
While it is true that the mere fact that one is acquitted of possession of a nearby controlled substance does not automatically foreclose a conviction for possession of drug paraphernalia, the State ignores significant facts which distinguish Grady from the instant case: In Grady, the substance seized from the vehicle was in fact marijuana, a controlled substance. Thus Grady (and the scale) were found in close proximity to a controlled substance, a factor expressly to be considered under section 893.146 in determining whether an object constitutes drug paraphernalia and in considering whether the object was intended to be used for an illicit purpose. See § 893.146(3) Fla. Stat. (2010) (“The proximity of the object to controlled substances.”). By contrast, in the instant case there was no controlled substance in the proximity of C.M. or the ear dropper, and thus no evidence from which one could infer that C.M. intended to use the ear dropper to inhale a controlled substance.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). An irrebuttable presumption of guilt from proof of a certain fact, in some circumstances, denies a defendant that protection and is consequently unconstitutional. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Chapter 80-30, however, does not create any presumptions. It merely lists, in Section 893.146, various relevant factors to consider. Section 893.146 is constitutional.
Grady would have us disregard the proximity of the marijuana because the jury acquitted him of the charge of possession of marijuana. However, section 893.146 does not require that a defendant be convicted of possession of the nearby illegal drug before it may be considered in determining whether the object seized is drug paraphernalia.
Twenty jurisdictions do not include a defendant's prior crimes among the "relevant" considerations. See Colo. Rev. Stat. Ann. § 18-18-427 (West 1997); Conn. Gen. Stat. Ann. § 21a-270 (West 1994); Del. Code Ann. tit. 16, § 4775 (1995); D.C. Code Ann. § 33-602 (1993); Fla. Stat. Ann. § 893.146 (Supp. 2000); Ga. Code Ann. § 16-13-32.1(c) (Supp. 2000); 720 Ill. Comp. Stat. Ann. § 600/3.5 (West 1993); La. Rev. Stat. Ann. § 40:1032 (West 1992); Mass. Gen. Laws Ann. ch. 94C, § 1 (West 1984 Supp. 2000); N.J. Stat. Ann. § 2C:36-1 (West 1995); Ohio Rev. Code Ann. § 2925.14 (Banks-Baldwin 1996); Okla. Stat. Ann. tit. 63, § 2-101.1 (West 1997); Or. Rev. Stat. § 475.525 (1995); S.C. Code Ann. § 44-53-391(b) (Law Co-op. Supp. 2000); S.D. Codified Laws Ann. § 22-42A-2 (Michie 1988); Tex. Health Safety Code Ann. § 481.183 (West 1992); V.I. Code Ann. tit. 19, § 593(13)(M) (1995); Vt. Stat. Ann. tit. 18, § 4475 (Supp. 2000); Va. Code Ann. § 18.2-265.2 (Michie 1996); Wis. Stat. Ann. § 161.572 (West 1997).
Section 893.146, Florida Statutes (1997), provides:
Section 893.147(1)(b), Florida Statutes (2014), makes it "unlawful for any person to use, or to possess with intent to use, drug paraphernalia ... [t]o inject, ingest, inhale, or otherwise introduce into the human body a controlled substance." In determining whether an item qualifies as drug paraphernalia, the court may consider, inter alia, the proximity of the item to any controlled substances, the existence of residue on the item, whether the item can be used for legitimate purposes, and expert testimony concerning the item's use. § 893.146, Fla. Stat. (2014). "The presence of even a minuscule quantity of drug residue is sufficient circumstantial evidence to prove the element of intent to use." Nixon v. State, 680 So.2d 506, 507 (Fla. 1st DCA 1996) (citing Steele v. State, 561 So.2d 638 (Fla. 1st DCA 1990) ). However, if the alleged paraphernalia tests negative for drug residue, the State must introduce other evidence to demonstrate possession of the item with intent to use it for an illicit purpose. T.E.D. v. State, 627 So.2d 118 (Fla. 5th DCA 1993).
Fla. Std. Jury Instr. (Crim.) 25.14; § 893.146, Fla. Stat. (2000).
Further, in order to have probable cause to arrest Mrs. Baggett for the offense of possession with intent to use drug paraphernalia, the officers needed to determine that the syringes dropped into the dumpster were indeed drug paraphernalia. Section 893.146, Florida Statutes (1987) sets forth the factors which a trial court, a jury, or other authority (in this case the officers) shall consider in determining whether an object is drug paraphernalia. These factors are as follows:
Townsend was convicted of possession of cocaine and possession of drug paraphernalia, and appeals the latter conviction, contending that there was insufficient evidence to prove the offense. Police found in Townsend's pocket a white rock and a small plastic container in which there was a white residue. An officer who performed a chemical reagent test testified that the rock and the container field-tested positive for the presence of cocaine. A chemist testified that the rock tested positive in the laboratory for cocaine, but that he had not tested the container. Although the mere field test alone of residue might not be enough to sustain a conviction for possession of cocaine or possession of drug paraphernalia, the presence of a tenth of a gram of cocaine in close proximity to a container containing a white residue, which field-tested positive for cocaine, is sufficient to sustain the inference that the container was used or intended to be used to package cocaine. Cf. § 893.145(10), Fla. Stat. (1999) (term "drug paraphernalia" includes "containers used, intended for use, or designed for use in packaging small quantities of controlled substances"); § 893.146, Fla. Stat…