Can Police Officers Legally Search A Car If A Clean Unused Pipe Is Found?

Updated January eight, 2022

Health and Safety Code 11364 HS – Possession of drug paraphernalia

Health & Condom Code 11364(a) HS is the California statute that makes it illegal topossess drug paraphernalia.This applies to any device, instrument or paraphernalia used for unlawfully injecting, smoking or otherwise consuming a controlled substance.

Common items of drugparaphernalia include methamphetamine pipes and cocaine spoons.

Consequences of a conviction

Illegal possession of drug paraphernalia in violation of Health & Safety Code 11364 HS is a misdemeanor.

Penalties for violating California'south possession of drug paraphernalia law can include six months in jail, and/or a fine of upwardly to $one,000.

In that location are additional consequences of a conviction for people who agree professional person licenses--lawyers, teachers, contractors, existent manor agents, etc. Repercussions of a drug paraphernalia conviction for such professionals can include intermission of their professional license.

How practise I defend myself against these charges?

Common defenses to criminal charges of HS 11364 drug paraphernalia possession include:

• What the police force found wasn't drug paraphernalia,
• The paraphernalia wasn't yours,
• Y'all didn't know that the item was drug paraphernalia, and
• The police discovered the paraphernalia during an illegal search or seizure.

An illegal search or seizure is a defense to possession of drug paraphernalia charges.

Below, our California criminal defense attorneys address the following:

• 1. When is drug paraphernalia illegal in California?
• 2. How can I fight an 11364 HS charge?
• 3. What are the penalties if I'k convicted?
  • 3.1. Am I eligible for drug diversion?
• iv. Related Offenses

If, after reading this commodity, you lot would similar more information, we invite you to contact us at Shouse Law Group.

i. When is drug paraphernalia illegal in California?

Wellness and Safe Code 11364 HS, California's "possession of drug paraphernalia" police, prohibits possessing "an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance".^ane

There is one major exception to California's law against possession drug paraphernalia. Until 2022, it is legal to possess hypodermic needles or syringes IF:

1. They are solely for your own personal utilise, and
2. You caused them from a physician, pharmacist, needle or syringe commutation plan, or any other source authorized past law to provide sterile syringes or needles without a prescription.

This exception is a public measure designed to preclude the transmission of HIV and other bloodborne diseases among those who use heroin and other injectable drugs.^two

Example : Steve is a heroin user concerned about the possibility of acquiring HIV from used needles. As a result, he regularly visits an authorized source for a needle exchange for gratuitous clean needles.

If Steve is caught with heroin in his possession, he could be charged with uncomplicated possession of a controlled substance under HS 11350. Merely if he is caught with needles he got from the exchange in his possession, he volition Not confront charges for possession of drug paraphernalia.

Syringes and needles obtained from legal sources are exempt from California's laws confronting possession of drug paraphernalia.

In lodge to captive you of illegal possession of drug paraphernalia, the prosecutor must evidence the following 3 facts (otherwise known equally "elements" of the criminal offence):

1. You exercised control over--or had constructive possession over--drug paraphernalia;
2. You knew of the paraphernalia'due south presence; and
3. You knew it was drug paraphernalia.³

Let's take a closer expect at some of these terms to gain a ameliorate understanding of the legal definition of possession of drug paraphernalia under Health & Prophylactic Code 11364 HS.

Control

Under Wellness & Prophylactic Lawmaking 11364 HS, "command" may be actual or constructive.

You lot actively control something when y'all physically deport it on your person.  For example, youactively control a pipage for smoking crack cocaine when you conduct it in your pocket.

Youconstructively command something when you either

1. exercise control over that item (for example, you constructively possess the piping that you own and left on your bedroom dresser), or
2. have the right to practice command over that item either individually or with another person (for example, y'all constructively possess the piping that you and your wife share which is at domicile in the bathroom).⁴

Case : Tina and her boyfriend are both fissure cocaine smokers. When Tina'south swain moves in with her, he brings several crevice pipes with him. Tina uses them regularly as well.

If police force search the apartment when Tina is not domicile, and notice the crack pipes, she could exist charged with possession of drug paraphernalia under HS 11364. This is because she had constructive joint control of the pipes.

Paraphernalia

The term "paraphernalia" nether California'due south possession of drug paraphernalia police refers to a variety of items that are used for illegally injecting, smoking, or otherwise consuming controlled substances or narcotic drugs.⁵

Nether this section, examples of drug paraphernalia include (but are not limited to) pipes, and miniature cocaine spoons.^vi

Excluded from this list, at least until 2022 are hypodermic needles and syringes where both of the following are true:

1. They are solely for your ain personal utilize, and
2. You caused them from a md, chemist, needle or syringe exchange programme, or whatever other source authorized past law to provide sterile syringes or needles without a prescription.^vii

Similarly, items that are more ofttimes associated with the manufacture and sale of drugs are not covered under HS 11364. That includes things similar

• scales and balances used to measure and weigh drugs,
• blenders, bowls, spoons, and other mixing devices used to compound controlled substances, and
• capsules, balloons, and other containers used to conceal or bundle drugs,

This is because possession of items associated with drug manufacture or auction is usually punished under Health and Safety Code 11351 HS California'southward "drug possession for sale" law, or Health and Safe Code 11352 HS California's transporting or selling a controlled substance" law--rather than under HS 11364, California'due south possession of drug paraphernalia law.

Controlled substances and narcotic drugs

Under Health and Safety Code 11364 HS, "controlled substances" or "narcotic drugs" are simply terms that are used to describe a class of specific drugs and drug-like substances. In general, these include

• stimulants,
• depressants,
• hallucinogens, and
• opiates.

Some of the nearly commonly used controlled substances and narcotics within these categories include:

• methamphetamine,
• heroin,
• cocaine, and
• PCP.⁹

Marijuana is specifically excluded from California's possession of drug paraphernalia law.  Drug offenses involving marijuana paraphernalia are regulated separately under California's marijuana laws. Under Suggestion 64, California'south marijuana legalization police, most personal use of recreational marijuana is no longer illegal.¹¹

People exempt from prosecution

There are sure people who are exempt from prosecution under HS 11364, California'southward possession of paraphernalia law.  These include

• law officers or anyone working under their immediate management or supervision, and
• pharmacists, doctors, dentists, podiatrists, veterinarians, every bit well as manufacturers, wholesalers, and retailers, who are licensed by the California State Lath of Pharmacy and prescribe, sell, or transfer hypodermic syringes, needles, or other objects intended for employ to inject drugs into the body.¹²

ii. How tin can I fight an 11364 HS charge?

The adept news is that in that location are a multifariousness of legal defenses to Health and Condom Code 11364 HS possession of drug paraphernalia charges that a skilled California criminal defense lawyer tin can present on your behalf.  Below are examples of some of the most common.

You didn't take control over the paraphernalia

If y'all didn't have control over the paraphernalia, and then you shouldn't exist convicted of this drug offense.

Example : Constabulary obtain a California search warrant to search Miguel'southward flat for testify of his involvement in a recent theft crime. The police detect a "crack pipe" in Miguel'south kitchen.

But the pipe belongs to Miguel's roommate Charlie, and but Charlie has always used it. Even though information technology is in Miguel's domicile, he is not in actual possession of it, nor does he accept the correct to control information technology.

As a effect, Miguel should be acquitted of a possession of paraphernalia accuse.

The object wasn't paraphernalia

Just because the object looks like something that tin can be used to inject or consume illegal drugs doesn't necessarily mean that it really is. Possibly information technology's a tool that you use to administrate prescription drugs to your sick or injured animal. Maybe it's a pipe that you lot use to fume tobacco.

For you to exist guilty of HS 11364 possession of drug paraphernalia, the prosecutor must prove that you possessdrug paraphernalia.Other objects exercise non satisfy this criteria.

Y'all are just guilty of possession of drug paraphernalia if you knew that what you possessed was paraphernalia.

You didn't know the object was paraphernalia

Even if the police do detect drug paraphernalia in your possession, if you didn't know it was paraphernalia, you aren't guilty of violating California'due south drug paraphernalia possession law.

Conspicuously, this defence against HS 11364 charges works all-time for those individuals who exercise not have a criminal history--especially a criminal drug history.

Equally Oakland criminal defense chaser Neil Shouse^xiii explains,

"In order to decide whether you know an object is "drug paraphernalia", the courtroom will consider any prior drug-related convictions, your statements concerning its employ, skilful testimony concerning the object's utilise, and how the object was displayed for sale."¹⁴

You lot didn't know about the paraphernalia'due south presence

Again, let'southward say that the police practice find you in possession of paraphernalia. If you didn't know you lot possessed it, you should exist acquitted of HS 11364 possession of drug paraphernalia.

In that location is an infinite number of instances where this defense to possession of drug paraphernalia charges could exist applicative. Someone borrowed your jacket and left a pipe in the pocket. Someone left his cocaine spoon in your car under the passenger seat. Someone placed a vial in your purse to avoid existence caught himself.

The paraphernalia was discovered during an illegal search and seizure

Often, drug paraphernalia is discovered during the course of an illegal search and seizure.

Case : The police force pull Karina over for speeding. Without whatsoever justifiable reason for doing so, they have her go out the car so that they can conduct a search. They observe a cocaine pipe nether her seat and charge her with HS 11364.

Because the paraphernalia was discovered during an illegal search, Karina's California criminal defense lawyer should prevail on a Penal Code 1538.5 PC motion to suppress evidence—which, in turn, should lead to a dismissal of the charges.

three. What are the penalties if I'g convicted?

Possessing drug paraphernalia is a misdemeanor. The potential penalties are:

• up to six (6) months of canton jail fourth dimension, and/or
• a maximum $1,000 fine.^xv

In addition, a conviction for Health and Safety Lawmaking 11364 HS--or for that affair, fifty-fifty anabort for this section--could pb to professional repercussions for those who hold professional licenses. For example, teachers who are accused of violating this police force may exist placed on an immediate go out of absence pending the resolution of the charge(southward).

Note that the L.A. County D.A.'southward role mostly does not prosecute HS 11364 cases.^sixteen

3.1. Am I eligible for drug diversion?

Some people convicted of California'due south possession of drug paraphernalia law volition be eligible for alternative sentencing known as a drug diversion programme.

Drug rehabilitation is offered in lieu of jail to those who have committednot-violent, drug possession and drug use offenses, including HS 11364. This type of alternative sentence is bachelor under California Proposition 36 and under Penal Code 1000 PC California's drug diversion or "deferred entry of judgment" programme.¹⁷

When you participate in drug diversion, y'all enter a guilty plea or a nolo contendere plea (more normally referred to every bit "no competition") to the drug paraphernalia possession charges.

Every bit a condition of your probation, the approximate orders you to complete drug rehabilitation. You will likely exist subject field to drug testing as a condition of your probation as well.

If you complete your probation and drug treatment successfully, the judge dismisses your drug paraphernalia possession charge. If you do not, the judge has the discretion to social club you to serve a jail judgement.¹⁸

Nonetheless, if you are simultaneously convicted of California Health and Safety Lawmaking 11364 HSand

1. a split misdemeanor crime that doesn't involve simple possession or drug apply (which includesdriving nether the influence of drugs),^xix or
2. a felony,

you lot volition be disqualified from participating in drug diversion.²⁰

4. Related Offenses

Health and Safety Code 11364 HS California'southward "possession of drug paraphernalia" law is closely related to a couple of other California drug offenses.

Health and Condom Code 11364.v HS

Health and Condom Code 11364.5 HS prohibits operating a business concern where drug paraphernalia is stored, displayed, or sold for utilise with legal substances except when information technology is kept in a room that is inaccessible to minors (that is, persons nether 18) who are non accompanied by a parent.

If guilty of this offense, the owner does not face up criminal penalties but stands to lose his/her California business concern license or permit.  Additionally, any drug paraphernalia will be seized by and forfeited to the country.²²

Health and Safety Lawmaking 11364.7 HS

Another California drug paraphernalia police force, similar to HS 11364, is Health and Rubber Lawmaking 11364.vii HS. This constabulary prohibits people from possessing, furnishing, transporting, or manufacturing drug paraphernalia when they know or reasonably should know that the paraphernalia volition be used in connection with illegal drug use or sales.²³

This section additionally punishes adults who

1. furnish minors with paraphernalia, or
2. possess hypodermic needles on school grounds intending (or knowing) that a modest volition apply the needles to inject illegal drugs.²⁴

Depending on the exact violation, violations of HS 11364.7 (a more than serious offense than paraphernalia possession under HS 11364) may be charged as either

• a misdemeanor (subjecting the accused to upward to i year in a canton jail and a maximum $1,000 fine), or
• a felony (punishable past 16 months, or 2 or three years in the California land prison and a maximum $x,000 fine).²⁵

Health and Rubber Code 11365 HS

Health and Safety Code 11365 HS makes information technology a offense to be present while someone else is using controlled substances and to aid and abet his/her controlled substance apply.²⁶

This misdemeanor offense carries a potential jail sentence of up to six (6) months.²⁷ It may be charged along with Health and Safety Code 11364 HS possession of drug paraphernalia if, for example, you are found in possession of paraphernalia that is being used or almost to be used past someone else.

Telephone call us for assistance…

Contact our California police force house for boosted assist.

If you or a loved i is charged with Health and Safety Code 11364 HS possession of drug paraphernalia and y'all are looking to hire an chaser for representation, we invite you to contact the states at Shouse Law Group. We tin provide a gratuitous consultation in role or past telephone. Our goal is to achieve the best outcome possible and keep your criminal tape clear.

We take local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange Canton, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada drug crime defence force attorneys are available to respond any questions relating to Nevada'southward drug paraphernalia laws.  For more information, we invite you lot to contact our local attorneys at ane of our Nevada law offices, located in Reno and Las Vegas.

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Legal References:

Source: https://www.shouselaw.com/ca/defense/health-and-safety-code/11364/

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