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Vaporizer for travel

Discussion in 'ABV' started by adamster, Aug 11, 2019.

  1. OldNewbie

    OldNewbie Well-Known Member

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    2,648
    The test YOU gave? It has been my point from the first. But, on the above, I agree. It's what I've been saying from the start and tried to prove up with statues and cases. I'm glad you came around.

    Now, knowing we completely agree on this point, reread all my posts and find out where you disagree.

    (I say you, because I have many instances I disagree with what you wrote and could point them out, but, that is not the point of the thread.)
     
    Last edited: Dec 14, 2019
  2. Brewervapesalot

    Brewervapesalot Well-Known Member

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    805
    That's my test. Yes I said it. No you.

    I also said:

    Not you. You're thinking intent matters and it does not.

    Last:

    ALL OF THE CASES you cite are irrelevant and no one should bother reading them. If anyone does, dont think they shed light on this issue. They do not.

    And you can disagree with me if you want, but that doesnt change the fact you're wrong and have poor understanding of this issue and how the law works in general--citing Googled searched irrelevant caselaw for a couple words out of context--and that I am right.
     
    Last edited: Dec 14, 2019
  3. His_Highness

    His_Highness In the land of the blind, the one-eyed man is king

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    2,671
    We desperately need a "who's is bigger" thread.
     
  4. Slotheus

    Slotheus Resident Sloth

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    Location:
    The North Woods
    [​IMG]
     
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  5. Brewervapesalot

    Brewervapesalot Well-Known Member

    Messages:
    805
    Fair.

    Just combatting Uncle Legal Scholar Without a Degree or License, i.e., "FAKE NEWS," legal analysis. Lol.
     
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  6. OldNewbie

    OldNewbie Well-Known Member

    Messages:
    2,648
    You have given zero legal basis for any of your "analysis" and have gone from:
    Nothing illegal about an unused flower vape.... If they can sell the vaporizer in the jurisdiction you're traveling to and from, having it in a unused state is not paraphernalia unless you got weed with you too.​

    To the correct:
    There is no single, or multi-factored, test for paraphernalia. The test I gave you is broad for a reason. A "connection" between weed and your vaporizer is anything a jury thinks it is. Any one of the factors listed in your chosen statute can be dispositive and the hook the jury can convict on. There is no need to meet more than one of the elements in that or any statute defining paraphernalia. They are all broad on purpose.​

    Spare me from the rest of your nonsense.

    You have insulted me repeatedly in the discussion and seem to imply you have some legal training. You have, at least, suggested you would have no trouble "proving" your point. Yet, you have identified none of the issues involved, refused to deal with or choose a particular law involved and cited no cases or decisions to support your errors. Fair enough. If we ignore some the nonsense spewed like:
    In sum, like I said before:

    Unless you're doing something illegal, possession of an un-used legal product, e.g., vaporizer, is not paraphernalia and is not illegal. Otherwise the makers of such products would be prosecuted.
    Which you now recognize is wrong--based on the rule we both agreed with. We might also look at:
    Again, unless you're doing something illegal, possession of an un-used legal product, e.g., vaporizer, is not paraphernalia and is not illegal. Otherwise the makers of such products would be prosecuted.​

    At one point, you wrote:
    I dont know if I can explain this any more ways. I feel like I'm in law school with the kid that wont stop raising his hand, or in a trial against against a pro se adversary that is the only person in the court room not understanding.​

    Are you implying you are an attorney who practices criminal law and you're giving us your expertise? Because, I would have thought all the times I asked for what facts, issues, law or whatever you're using as a basis for your (then) wrong opinion an attorney might have known what I was asking for. Not you, you still just insulted and challenged what you now agree with. At one point you promised to look things up. I was happy as "At least we'll know what facts you're relying upon, the jurisdiction and the actual law you want discussed." Sadly, we still just have internet yelling from you.

    While we won't see it, please point out what I wrote that disagreed in any way what the law is. (Or, even what you perceive it is.) Let's review what you replied to that started this:
    If your argument is it's not paraphernalia unless you got weed with you, I disagree.​

    Do you now agree or disagree with that statement as a matter of law? (Not as to what you and I might claim is the other's argument.)

    With all this high-falutin training of yours (that others, such as myself, cannot have) let's get to the real question, if the cop comes and arrests you for a clean vape (Anywhere but CA--maybe other places too. We can't know unless someone wants to narrow the discussion.), does he have probable cause to arrest for it?

    What if he says:
    In my training and experience such a device is solely used for cannabis.


     
  7. Brewervapesalot

    Brewervapesalot Well-Known Member

    Messages:
    805
    I don't have to imply it, if it's not obvious, I can just tell you I'm a trial and appellate attorney. As for legal training, I also graduated magna cum laude and worked for three different judges, federal, state, trial and appellate, before private practice. I was also a constitutional law clerk for a firm that has won numerous US supreme court cases.

    Have you ever argued in front of the Ninth Circuit Court of Appeals, or filed for certiorari before the US Supreme Court. I have as I am admitted to practice before those courts.

    My only ethical disclaimer is that nothing I say here is creating an attorney-client relationship. I am only providing general, plain language, interpretation of a hypothetical legal issue. I'm definitely an activist for cannabis or I would not be on this forum. I care more about everyday folk than my high-minded colleagues in most instances.

    That's why I'm saying you have no idea what you talking about... and you're misleading people with very poor legal analysis. You can say it's insulting, but I think it's far more insulting to try to play lawyer when people in this forum might actually listen to you and get screwed.

    Notice when I explain things I try to explain things in a non-legal, plain language way, because my audience here is not attorneys nor judges. I could talk over your head if I wanted to, but that's not my goal here. My goal is to point out obvious principles of law, in a simple clear way to help people understand the law. Because you are frustrating that goal, I point out your not helping anyone by referencing irrelevant law in a complicated and incorrect fashion.

    The ironic part is that you obviously have no legal training but try to act like an attorney for some reason.

    In my experience in practice, opposing parties without legal training who try to litigate anything drive me nuts. They drive judges nuts. They come across as idiots and dont even know it. People should never represent themselves. It's stupid. I would never do it.

    No, there is no probable cause there, without more, and I would challenge any such warrant or warrant affidavit.

    Moreover, if all you have and all you have done is have a clean vaporizer, the cop isnt going to bother you.

    Could a cop make a mistake or be over zealous (or really the magistrate/commissioner/judge signing off on the warrant), yeah, but you'd be able to quash that warrant.

    Finally, as for your (purposeful?) inability understand what I have said, here it is again, even simplier.

    An un-used (commercially made) vaporizer, without more, is basically never illegal as paraphernalia in the USA.

    If you add something else to the factual scenario, connected to an illegal substance or illegal act having to do with an illegal substance, it's a jury question whether you have an item of paraphernalia.

    A very clean vaporizer is almost like having an unused vaporizer. Without more, jonny law doesnt have much evidence or incentive to do anything, and a good attorney would destroy him on cross examination.

    But the average person even being questioned by the law about it can be embarrassing.

    That's why I said, if you're worried about it, just buy a new cheapy for travel.
     
    Last edited: Dec 15, 2019
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  8. OldNewbie

    OldNewbie Well-Known Member

    Messages:
    2,648
    I wrote a really long post that was quite insulting pointing out the number of legal errors of @Brewervapesalot , but that would not enlighten anyone. An appellate attorney writing so casually should be embarrassed. Let's make it easy:

    Please point out any legal errors I made.

    Because pounding the table seems the path chosen so far, it might be better to just cut and paste. Just ctrl+c, ctrl+v.

    As to the error on probable cause, we're not talking about some judicial argument to see if the vape can be seized, we're talking about if a cop can arrest and not be at risk of liability for false arrest. For that, my expertise is that I testified twice in court as an expert (albeit in the 30-35 year ago range you guessed about my main knowledge on the topic) on paraphernalia. Sure, it is/was a nonsense finding, me being an expert, as it was based on my training and experience as a cop. But, I was an expert, who opined (the reason for going through the foundation to have me be one each time) that that spoon and that lanyard and that lighter that was in that container was what addicts use to inject illegal drugs--even though no illegal drugs were found in either case. (Yes, cross asked about no syringe and no drugs and said the bent spoon, lanyard and lighter in a kit could have been used for anything.) I don't know if my testimony was the most important or the fact the suspect(s) were previously both arrested for heroin use multiple times, but, that spoon, lanyard and lighter were held to be paraphernalia.

    But, coppin' isn't my gig. I prefer arguing (heh) than forcing people to do what I say. So after ending up at another job, I went to a crappy law school. Really crappy night school law school. Still, I was top gun of the people there and passed the Bar. Over time, it became too hard to work at the CPA I was working at AND keep the legal thing going. The attempt to keep a clear firewall between legal and accounting was hard and almost got my boss sued so I determined to not be active. I just do taxes and argue with tax people. I've never been to court and litigated anything as an attorney. (As pro per, two small claims and one federal civil rights.) Please feel free to use big words in any response, I'll try to follow along.

    Going to law school after being a cop will certainly focus one on certain topics. Even though I don't do anything related, I still keep up with 4th amendment law as it fascinates me. How such large issues can be resolved on the smallest facts is really interesting and geared to distinguishing facts. Believe me when I tell you having had to implement real world actions and make real decisions was a great background to understanding when studying the law later. But, that's me. Things that come up in the context of this forum also sometimes interest me. Being an court sanctioned expert and all. (That was just to cheese you off a bit. I am fully aware of how little being an "expert" means in actually understanding the law.)

    Now, "A very clean vaporizer is almost like having an unused vaporizer. Without more, jonny law doesnt have much evidence or incentive to do anything, and a good attorney would destroy him on cross examination." I'm not sure how you can destroy a person for something that, at its core--depends. In fact, one of the evidentiary paths to proving it up is:
    (8)expert testimony concerning its use.​

    I suppose part of the destruction is trying to prevent the cop from being an expert. Good luck with that. If you have a good secret on making it happen, write a book. LOTS of attorneys would like to know. That's why the training and experience claim is so powerful. Cops really ARE trained and they really DO have experience on things. Combine that with the low bar to be an expert and...a little less destruction. You might try to bring in YOUR expert who will opine on:
    (7)the existence and scope of legitimate uses of the item in the community;
    (4)the manner in which the item is displayed for sale;​
    Maybe, depending on which vape we're talking about, some of the other factors too. We'll assume this cleaned vape did not react to a test swab for cannabis--if that makes it easier. (Even though I'm not sure if you can clean a vape that well.)

    You might even try the affirmative defense of the vape being traditionally used for tobacco. But, that's not destroying the cop. We're not talking about full knowledge here of a guy who has a vape that purchased it after reading about it on FC, has a history of reviewing cannabis vapes and, last week, had a video out with the vape's serial number on it and him smoking what he claimed was cannabis in it where he also said he'd do it again next week. We're just talking about a cop, who was called to TSA for a clean vape in a jurisdiction where cannabis paraphernalia is illegal.

    Pretend the cop arrests him. Pretend, further, the guy was found not guilty, thus giving the ability to sue for false arrest. Pretend you sue him. Pretend you have an actual precedental case that specifically holds the training and experience of a cop expert is NOT reasonable to base an arrest decision on regarding paraphernalia. (It's not out there but probable cause is easier to understand than the qualified immunity securing arguable probable cause "standard".)

    Cop (after being qualified as an expert and all the other foundational bit): "When I arrived at TSA the officer showed me the box holding the AbsolutelyLavender vape which is used to vaporize cannabis and inhale the resulting vapor."

    Destroy his defense of probable cause. MY definition is "facts and circumstances that would lead a reasonable person of like knowledge and training to believe a crime has been or is being committed". You can use that or the case law "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."
     
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  9. Bazinga

    Bazinga Member

    Messages:
    71
    Two attorneys arguing ad nauseam is like watching paint dry. I must admit that at first it was a very thought provoking (not however to the point of spell binding) discourse between 2 obvious well intended and capable attorneys. Reminds me of the story of a very small town that had only 1 lawyer. His practice was very small because there just wasn't much to litigate. Now a second lawyer moved to town and suddenly both lawyers are now very busy.

    I believe that both of you are correct and both of you are incorrect. I also believe, as cogent as you are, you 2 can argue from now to eternity and never prove your point(s).

    I would like to thank Old Newbie for his service in law enforcement. Thanks to both of you for providing a stimulating discussion that has now gone down the rabbit hole.
     
    Last edited: Dec 16, 2019
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  10. OldNewbie

    OldNewbie Well-Known Member

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    2,648
    You're right. I let my ego get the best of me. Love the joke, I think I've used it in other threads. There's a lot of truth to it.
     
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  11. Brewervapesalot

    Brewervapesalot Well-Known Member

    Messages:
    805
    Boy, if your attorney, I'd like having you as opposing counsel. This is gibberish mixed in with personal opinion and random legal terms.

    I don't care what your hypothetical cop says, he's out to lunch and up a creek without a paddle, if he's arresting anyone with a legal product, e.g., commercially made un-used vaporizer, without more. Got it? That's the reality. I'd slaughter him on cross examination, but it would never get to trial.

    Moreover, this is a stupid example because no ones getting arrested in your example. A new vape simply is not paraphernalia without more.

    Finally, your clean vape example, is the same situation as an unused vaporizer since it's "clean." The cop can say whatever he wants "in his experience" that doesn't change reality. He needs more for probable cause, for a warrant, or to arrest. Finding a commercially made vaporizer on someone without any connection to illegal substances is not paraphernalia.

    Anyone listening this far, the law isnt so much of an ass as to deny this amount of common sense.

    @OldNewbie, you should go read your intellectual property cases, maybe another one from Canada. What a maroon.... maybe cite some chinese law, or a treatise on estate planning....

    There's one capable attorney here. The other, if he is an attorney, is anything but capable.

    Now, in addition to intellectual property law, you're bringing in civil liability claims (another whole area of law) to this simple discussion of what is and what is not paraphernalia.

    Civil liability, false arrest, Section 1983 claims, or the like, are not what we are talking about. I've sued cops, wouldn't mind suing you for lack of a clue.

    Holding a cop liable for anything is an extremely high standard, nothing to do with the definition of paraphernalia. They can make huge mistakes, arrest someone without probable cause, and not be liable in any way.

    I specifically excluded cops making a mistake or being overly zealous:
    The original poster wants to know when it's illegal to travel with a vaporizer. Not what happens when a dumb ass cop screws up--cause they can do that anytime and that sheds no light on whether a vaporizer is or is not paraphernalia.

    What we are talking about is what is and what is not paraphernalia. Dont change the argument because you have lost it completely.

    You obviously don't practice law. The best arguments are simple, plainly written. The best judges do the same. Your crappy run on sentences, and terrible style just cause people to not read your shit. You block quote law because you dont understand it and cant simplify it....
     
    Last edited: Dec 17, 2019
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  12. OldNewbie

    OldNewbie Well-Known Member

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    2,648
    Last edited: Dec 17, 2019
  13. Stu

    Stu Maconheiro Staff Member

    Messages:
    9,807
    Location:
    southeast of disorder
    As this thread has devolved into a tit-for-tat legal spat that doesn't seem to be going anywhere, I'm going to shut it down.

    If anyone would like to discuss the topic further, feel free to do so in this thread, but please keep in friendly.

    Thank you.

    :peace:
     
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