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IS THE PAPER SURROUNDING YOUR PARTIALLY SMOKED MARIJUANA CIGARETTE DRUG PARAPHERNALIA?

The PA Superior Court has held, in the case of Commonwealth v. Miller, No. 467 EDA 2015 (November 20, 2015), that the burnt paper surrounding a partially smoked marijuana cigarette is not drug paraphernalia.

FACTS

Defendant was charged with possession of a small amount of marijuana and possession of drug paraphernalia after officers located a partially burnt cigar between the driver’s seat and the center console of a vehicle. Defendant admitted the partially burnt cigar belonged to him.

After a bench trial, the Defendant was convicted of both offenses. He thereafter filed an appeal of the drug paraphernalia conviction to the Superior Court, claiming that the definition of drug paraphernalia “cannot plausibly be interpreted to include that portion of a marijuana cigarette that is not actually a controlled substance.” Specifically, he noted that “the burned wrappings of a marijuana cigarette” are not included in the list of items defined as drug paraphernalia in the statute and the Legislature could not have intended to expose a defendant in possession of “nothing more than a half-smoked joint, to punishment for more than one crime,” i.e. – possessing a small amount of marijuana and possessing drug paraphernalia.

ISSUE

Whether the evidence was sufficient to support Defendant’s conviction of possession of drug paraphernalia, based solely upon the burnt paper surrounding the marijuana cigarette recovered from the vehicle?

HOLDING

The Superior Court held that the evidence was insufficient to support the verdict on possession of drug paraphernalia based solely on the burnt paper encasing the partially smoked marijuana cigarette found in the vehicle.

Judgment was therefore vacated as to the possession of drug paraphernalia offense.

REASONING

Defendant’s conviction of possession of drug paraphernalia is based solely on the burnt paper encasing the partially smoked marijuana cigarette found in the vehicle.

Pursuant to the Drug Act, drug paraphernalia consists of “materials of any kind which are used, intended for use or designed for use in … containing, … inhaling or otherwise introducing into the human body a controlled substance[.]” However, noticeably absent from the list of paraphernalia items is the paper encasing a marijuana cigarette.

The Superior Court found the language of the Drug Act to be ambiguous. Although it defines drug paraphernalia as “materials of any kind which are used … in containing [or] inhaling … into the human body a controlled substance[,]” it does not list the burnt paper surrounding a half-smoked marijuana cigarette – a common item used to hold/smoke marijuana – as an example of paraphernalia.

Additionally, 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 attendant to a conviction of possession of marijuana and, assumedly, the more severe penalties attendant to possession of drug paraphernalia.

http://www.pacourts.us/assets/opinions/Superior/out/J-S60035-15o%20-%201024439795723906.pdf?cb=1

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