Vaporizer for travel

Brewervapesalot

Well-Known Member
The "worst" that could happen is it is determined to be drug paraphernalia--possession of which is a crime.

Have I heard of it happening? No. I suspect you'd have to be a politician-level jerk to piss off a cop enough to arrest for paraphernalia.

But, remember,

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.
 

Tranquility

Well-Known Member
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.
If your argument is it's not paraphernalia unless you got weed with you, I disagree.
 

Brewervapesalot

Well-Known Member
If your argument is it's not paraphernalia unless you got weed with you, I disagree.

Unless you're doing something illegal, possession of an used legal product is not paraphernalia and is not illegal. Otherwise the makers of such products would be prosecuted.
 
Brewervapesalot,

Tranquility

Well-Known Member
Are we referring to used vaporizers or new unused vaporizers?
Brand new, if you'd like. But, federally (where the below definition comes) would require sale or marketing the paraphernalia, mailing the paraphernalia or otherwise taking it interstate, or importing or exporting. State or local law may differ.

(d) “Drug paraphernalia” defined:
The term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana,[1] cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—

(1)metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2)water pipes;
(3)carburetion tubes and devices;
(4)smoking and carburetion masks;
(5)roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6)miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7)chamber pipes;
(8)carburetor pipes;
(9)electric pipes;
(10)air-driven pipes;
(11)chillums;
(12)bongs;
(13)ice pipes or chillers;
(14)wired cigarette papers; or
(15)cocaine freebase kits.

drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1)instructions, oral or written, provided with the item concerning its use;
(2)descriptive materials accompanying the item which explain or depict its use;
(3)national and local advertising concerning its use;
(4)the manner in which the item is displayed for sale;
(5)whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6)direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7)the existence and scope of legitimate uses of the item in the community; and
(8)expert testimony concerning its use.

(f) Exemptions
This section shall not apply to—
(1)any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2)any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.
Edit:
From a page of an attorney trolling for clients.
https://www.copleyroth.com/criminal-defense/how-much-trouble-am-i-in-for-a-drug-paraphernalia-case/

The statute is clear that simply because the item is new and has never been used does not settle that it is not paraphernalia. This is because items become paraphernalia based upon use with or intent to use with drugs. Therefore, our brand new postal scale may be paraphernalia before it ever leaves its box—depending on what the owner intends to use the scale in connection with.​
 
Last edited:
Tranquility,

Bazinga

Well-Known Member
Brand new, if you'd like. But, federally (where the below definition comes) would require sale or marketing the paraphernalia, mailing the paraphernalia or otherwise taking it interstate, or importing or exporting. State or local law may differ.

(d) “Drug paraphernalia” defined:
The term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana,[1] cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—

(1)metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2)water pipes;
(3)carburetion tubes and devices;
(4)smoking and carburetion masks;
(5)roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6)miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7)chamber pipes;
(8)carburetor pipes;
(9)electric pipes;
(10)air-driven pipes;
(11)chillums;
(12)bongs;
(13)ice pipes or chillers;
(14)wired cigarette papers; or
(15)cocaine freebase kits.

drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1)instructions, oral or written, provided with the item concerning its use;
(2)descriptive materials accompanying the item which explain or depict its use;
(3)national and local advertising concerning its use;
(4)the manner in which the item is displayed for sale;
(5)whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6)direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7)the existence and scope of legitimate uses of the item in the community; and
(8)expert testimony concerning its use.

(f) Exemptions
This section shall not apply to—
(1)any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2)any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.
Edit:
From a page of an attorney trolling for clients.
https://www.copleyroth.com/criminal-defense/how-much-trouble-am-i-in-for-a-drug-paraphernalia-case/

The statute is clear that simply because the item is new and has never been used does not settle that it is not paraphernalia. This is because items become paraphernalia based upon use with or intent to use with drugs. Therefore, our brand new postal scale may be paraphernalia before it ever leaves its box—depending on what the owner intends to use the scale in connection with.​

Fascinating !!! Although their are countless vape stores, head shops, etc. selling vaporizers. The authorities (at least in my state) have made no effort to curtail sale of these products. I travel out of state with my device(s) in my carry on bag and, so far, the TSA couldn't care less. In the event of an encounter with the TSA that leads to arrest by the local police, I cannot imagine prosecution. In fact, I haven't seen any articles or news revealing TSA actions taken against travelers with vaporizers. The local jurisdictions have more important things to do.
 
Last edited by a moderator:

Tranquility

Well-Known Member
Fascinating !!! Although their are countless vape stores, head shops, etc. selling vaporizers. The authorities (at least in my state) have made no effort to curtail sale of these products. I travel out of state with my device(s) in my carry on bag and, so far, the TSA couldn't care less. In the event of an encounter with the TSA that leads to arrest by the local police, I cannot imagine prosecution. In fact, I haven't seen any articles or news revealing TSA actions taken against travelers with vaporizers. The local jurisdictions have more important things to do.
"Prosecutorial discretion" is the legal jargon for "more important things to do". In theory, cannabis is illegal federally as well. Are we seeing a lot of cannabis arrests at TSA?

If the TSA finds cannabis on a passenger, because it is federally illegal, it is the policy of the TSA to turn over the person possessing cannabis to local law enforcement. Local law enforcement might be in a legal state like California. So, the TSA calls the Airport (local) police who...let the guy go. The policy at LAX:
https://www.flylax.com/en/lax-marijuana-policy
As of January 1, 2018, California law allows for individuals 21 years of age or older to possess up to 28.5 grams of marijuana and 8 grams of concentrated marijuana for personal consumption. With the change in state law, the policy and procedures of the Los Angeles Airport Police Division (APD) regarding marijuana were updated to reflect this change. APD officers, who are California Peace Officers, have no jurisdiction to arrest individuals if they are complying with state law. However, airport guests should be aware that Transportation Security Administration (TSA) screening stations are under federal jurisdiction. Also, passengers should be aware that marijuana laws vary state by state and they are encouraged to check the laws of the states in which they plan to travel.​
 
Tranquility,

Brewervapesalot

Well-Known Member
I have court cases saying differently. Including the Supreme Court case I linked.

First, you cited circuit court cases not supreme court cases. Second and Third Circuits to be exact.

Second, although the Supreme Court denied a petition for certiorari in one case, less than 1% of all such petitions are heard by the supreme court.

Third, there was no reason for the supreme court to hear these 1990's cases (maybe try finding a case actually on point and that isn't 30 years old) because the the circuit courts view the law at issue the same, and nowhere near the way you read the cases.

Fourth, in one case the defendant pled guilty, reserving an appeal as to the constitutionality of the statute. He did not appeal whether he did or did not do anything illegal. He appealed there was no enforceable law at all. In the other case, the defendant also appealed the same thing, i.e., the constitutionality of the statute.

Fifth, in both cases the circuit courts held the statute constitutional. Nothing to do with anything being discussed in this thread.

Sixth, neither case discusses anything to do with whether an unused vaporizer, sold on the mass market legally, carried by a traveler--doing nothing illegal--could be paraphernalia. Again, the cases discuss the constitutionality of a statute.

Seventh, if you actually read the statutes at issue in the cases, it's literally impossible to read those statutes as criminalizing the possession of an unused vaporizer that is sold on the mass market legally.

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.

Happy to continue this discussion, but you're just mistaken and misread inapplicable caselaw.


:hmm::leaf:


P.S. the attorney website you cite, agrees with me in the first couple paragraphs:

https://www.copleyroth.com/criminal-defense/how-much-trouble-am-i-in-for-a-drug-paraphernalia-case/

"What Is Drug Paraphernalia?
Drug paraphernalia is an item used in connection with a controlled substance."

Exactly.... you have to be doing something or have something illegal with you before a legal product can be deemed in any way "paraphernalia"

Hope that clears that up for people... vape weed, be smart, but don't be paranoid.
 
Last edited:

Tranquility

Well-Known Member
First, you cited circuit court cases not supreme court cases. Second and Third Circuits to be exact.
I disagree. I didn't "cite" any case but the only one I linked to was:
https://scholar.google.com/scholar_case?case=8688167052149067906&q=Paraphernalia&hl=en&as_sdt=2003
Posters 'N' Things, Ltd. v. United States, 511 US 513 (1994)
The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the "designed for use" standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F. 2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied, 507 U. S. 921 (1993). Accordingly, the "designed for use" element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
It was the Supreme Court in its decision that cited the cases.

Sixth, neither case discusses anything to do with whether an unused vaporizer, sold on the mass market legally, carried by a traveler--doing nothing illegal--could be paraphernalia. Again, the cases discuss the constitutionality of a statute.
Yes. Is it constitutional to make a law to make paraphernalia illegal? Even an unused vaporizer, sold on the mass market legally, carried by a traveler--doing nothing illegal. Yes, it is. Have they made such a law? Yes they have, many times in many jurisdictions. The old days had Constitutional problems with such laws on paraphernalia. But after a "model" law was developed back in the late 1970s most jurisdictions followed the model.

Seventh, if you actually read the statutes at issue in the cases, it's literally impossible to read those statutes as criminalizing the possession of an unused vaporizer that is sold on the mass market legally.
I promise you, I have actually read the statutes. I am uncertain as to how you can find it literally impossible to read those statutes to apply to the situation we're talking about. As I wrote earlier, statutes are written quite broadly.

Here's an actual list of the methods they'd use in Texas to see if the vape is paraphernalia:
https://www.lawserver.com/law/state/texas/tx-codes/texas_health_and_safety_code_481-183 :
:
(a) In considering whether an item is drug paraphernalia under this chapter, a court or other authority shall consider, in addition to all other logically relevant factors, and subject to rules of evidence:
(1) statements by an owner or person in control of the object concerning its use;
(2) the existence of any residue of a controlled substance on the object;
(3) direct or circumstantial evidence of the intent of an owner or other person in control of the object to deliver it to a person whom the person knows or should reasonably know intends to use the object to facilitate a violation of this chapter;
(4) oral or written instructions provided with the object concerning its use;
(5) descriptive material accompanying the object that explains or depicts its use;
(6) the manner in which the object is displayed for sale;
(7) whether the owner or person in control of the object is a supplier of similar or related items to the community, such as a licensed distributor or dealer of tobacco products;
(8) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(9) the existence and scope of uses for the object in the community;
(10) the physical design characteristics of the item; and
(11) expert testimony concerning the item’s use.
(b) The innocence of an owner or other person in charge of an object as to a direct violation of this chapter does not prevent a finding that the object is intended or designed for use as drug paraphernalia.​
You might not see such a codified list of reasons that can be used in all jurisdictions, there is case law that guides.

The point is, everything depends on the facts. I think we all agree a vape with cannabis residue and fresh flower in the bowl will be considered paraphernalia. But, that could be wrong too--depending.

As I write this sentence, I stop many times. Clearly, we can be deep in the weeds as I don't think we're looking at this in the same way technically. Before we go on, you might provide some resource indicating a requirement of drug residue before something is paraphernalia. (Or, drugs nearby, or...whatever.) Because I don't see it.

In my state, the law was changed specifically to cannabis paraphernalia--at least according to the courts. In re Johnny O., 132 Cal. Rptr. 2d 471 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 2003. Holding:
We therefore conclude that the possession of a device for smoking marijuana, without more, is not a crime in California.​
This fact, has to do with state law in California. Since possession of cannabis paraphernalia is not a crime there the state police would not be able to arrest or detain a person for it. It is not the same federally or in other states like Texas. Perhaps this is where the confusion lies.

Finally, a historical (not controlling) summary of how the law developed can be found in:
Atkins v. Clements, 529 F. Supp. 735 - Dist. Court, ND Texas 1981
Because of the character limit on posts I'll just link rather than quote.
https://scholar.google.com/scholar_case?case=6257031616431809981&hl=en&as_sdt=2006

The reason why most of the cases are so old is because this is settled law. Modern challenges don't get to the appellate level.
 
Tranquility,

Brewervapesalot

Well-Known Member
I disagree. I didn't "cite" any case but the only one I linked to was:
https://scholar.google.com/scholar_case?case=8688167052149067906&q=Paraphernalia&hl=en&as_sdt=2003
Posters 'N' Things, Ltd. v. United States, 511 US 513 (1994)
The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the "designed for use" standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F. 2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied, 507 U. S. 921 (1993). Accordingly, the "designed for use" element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
It was the Supreme Court in its decision that cited the cases.


Yes. Is it constitutional to make a law to make paraphernalia illegal? Even an unused vaporizer, sold on the mass market legally, carried by a traveler--doing nothing illegal. Yes, it is. Have they made such a law? Yes they have, many times in many jurisdictions. The old days had Constitutional problems with such laws on paraphernalia. But after a "model" law was developed back in the late 1970s most jurisdictions followed the model.

I promise you, I have actually read the statutes. I am uncertain as to how you can find it literally impossible to read those statutes to apply to the situation we're talking about. As I wrote earlier, statutes are written quite broadly.

Here's an actual list of the methods they'd use in Texas to see if the vape is paraphernalia:
https://www.lawserver.com/law/state/texas/tx-codes/texas_health_and_safety_code_481-183 :
:
(a) In considering whether an item is drug paraphernalia under this chapter, a court or other authority shall consider, in addition to all other logically relevant factors, and subject to rules of evidence:
(1) statements by an owner or person in control of the object concerning its use;
(2) the existence of any residue of a controlled substance on the object;
(3) direct or circumstantial evidence of the intent of an owner or other person in control of the object to deliver it to a person whom the person knows or should reasonably know intends to use the object to facilitate a violation of this chapter;
(4) oral or written instructions provided with the object concerning its use;
(5) descriptive material accompanying the object that explains or depicts its use;
(6) the manner in which the object is displayed for sale;
(7) whether the owner or person in control of the object is a supplier of similar or related items to the community, such as a licensed distributor or dealer of tobacco products;
(8) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(9) the existence and scope of uses for the object in the community;
(10) the physical design characteristics of the item; and
(11) expert testimony concerning the item’s use.
(b) The innocence of an owner or other person in charge of an object as to a direct violation of this chapter does not prevent a finding that the object is intended or designed for use as drug paraphernalia.​
You might not see such a codified list of reasons that can be used in all jurisdictions, there is case law that guides.

The point is, everything depends on the facts. I think we all agree a vape with cannabis residue and fresh flower in the bowl will be considered paraphernalia. But, that could be wrong too--depending.

As I write this sentence, I stop many times. Clearly, we can be deep in the weeds as I don't think we're looking at this in the same way technically. Before we go on, you might provide some resource indicating a requirement of drug residue before something is paraphernalia. (Or, drugs nearby, or...whatever.) Because I don't see it.

In my state, the law was changed specifically to cannabis paraphernalia--at least according to the courts. In re Johnny O., 132 Cal. Rptr. 2d 471 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 2003. Holding:
We therefore conclude that the possession of a device for smoking marijuana, without more, is not a crime in California.​
This fact, has to do with state law in California. Since possession of cannabis paraphernalia is not a crime there the state police would not be able to arrest or detain a person for it. It is not the same federally or in other states like Texas. Perhaps this is where the confusion lies.

Finally, a historical (not controlling) summary of how the law developed can be found in:
Atkins v. Clements, 529 F. Supp. 735 - Dist. Court, ND Texas 1981
Because of the character limit on posts I'll just link rather than quote.
https://scholar.google.com/scholar_case?case=6257031616431809981&hl=en&as_sdt=2006

The reason why most of the cases are so old is because this is settled law. Modern challenges don't get to the appellate level.

You haven't said anything new from your original post, and you're still wrong on this. You just cut and paste a statute with multiple factors. None of which criminalize possession of a legally sold, and unused, vaporizer--without it being connected to illegal activity.

The big point is that you can't read cases or statutory definitions out of context, and that's what really doing.

I'll pull some annotations on Westlaw and cite you some current cases and law, but that really isnt necessary.

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.

Edit: I'll say this one really clear way; show me a single case where a court says it is paraphernalia by having an unused vaporizer without any connection to anything illegal....?
 
Last edited:

Tranquility

Well-Known Member
I'll pull some annotations on Westlaw and cite you some current cases and law, but that really isnt necessary.
Actually, it is. If you want to continue.

At least we'll know what facts you're relying upon, the jurisdiction and the actual law you want discussed.

As to your challenge, there is no vaporizer case I know of directly. In trying for intellectual property protection, the court did mention a vaporizer as being different from the traditional things (related to tobacco) where an exemption to paraphernalia law could be found.
REPUBLIC TECHNOLOGIES (NA) v. BBK TOBACCO & FOODS, 262 F. Supp. 3d 605 (2017):
Nevertheless, Republic identifies at least one HBI trademarked product — a vaporizer — that does not incontrovertibly fall under the exemption. In some contexts, vaporizers have been deemed drug paraphernalia. Cf. In Re JJ206, LLC, DBA Juju Joints, 120 U.S.P.Q.2d 1568 (T.T.A.B. Oct. 27, 2016) (affirming refusal to register trademark for use with marijuana vaporizing devices). Whether HBI's device constitutes drug paraphernalia is a factual question that cannot be resolved at the motion-to-dismiss stage. See, e.g., United States v. Assorted Drug Paraphernalia, 90 F.Supp.3d 1222, 1229 (D.N.M. 2015) (denying summary judgment on forfeiture claim on the ground that genuine dispute of material fact as to whether scales and other items were drug paraphernalia within the meaning of § 863(d)). Because I cannot say as a matter of law that none of HBI's registered products violates the Controlled Substances Act, I deny HBI's motion to dismiss Republic's cancelation claim insofar as it is based on allegations that HBI's products are used in unlawful commerce.​


To an ordinance written much like the Texas one including evidence factors, DISC & TAPE, INC. v. CITY OF MOORHEAD, Dist. Court, Minnesota 2012:
Representatives of the City police department visited Discontent on December 21, 2011, before the Ordinance went into effect. A transcript of an audio recording of that visit has been submitted by Plaintiffs. (Tepley Supp. Aff., Ex. A.) During the visit, police officers identified to Plaintiffs the items in Discontent that the officers considered to be drug paraphernalia and therefore prohibited by the Ordinance. Such items included "water bongs," "short metal and glass pipes," and "vaporizers." (Id. at 5-7.) The officers also identified items, such as "traditional hookahs," "traditional pipe," "scales," and "grinders" which would not be considered drug paraphernalia under the Ordinance. (Id.)

According to the transcript, the officers stated that "nobody is going to jail over this." (Id. at 1.) Instead, the officers stated that, once the Ordinance went into effect, they would visit the shop and determine if drug paraphernalia was still being sold. If the shop was not in compliance with the Ordinance, the officers "would issue citations and . . . have a court date issued then." (Id. at 2.)​


In Moorhead, the head shops sued to prevent the enforcement of the statute. The court held the statute was fine. While we don't have an example of the person getting arrested for a vape--without anything else--we have an example of the police telling a guy he's going to be arrested for it and the court saying :tup:
 
Tranquility,

bossman

Gentleman Of Leisure
A more useful thing to determine would be the legality or risk of traveling with a used but reasonably clean dry herb vape. When visiting someplace recreationally legal or someplace that honors out of state medical card holders the most common situation would be traveling with an empty, clean vape you already own, right?

It's bizarre to live with a broad "ah well it depends on the day and who you might be dealing with in a given state". Still, traveling to a legal state and bringing a vape to use seems a fairly tame undertaking to merit a federal charge.
 

Tranquility

Well-Known Member
It's bizarre to live with a broad "ah well it depends on the day and who you might be dealing with in a given state". Still, traveling to a legal state and bringing a vape to use seems a fairly tame undertaking to merit a federal charge.
Agreed. No one disputes that. The FBI is not coming down to the TSA check-in for a vape, needle or pipe, even if it had the marijuana's burning inside it.

But, all this "depending" deals with the reality it is sometimes hard to deal with intent and what (I hope) @Brewervapesalot is meaning by "something more". There has to be a link between the item and drug use. Residue would be a link. An admission about how you intended to use the vape for cannabis when you returned to your legal state, would be a link. The link is the key for dual use items (as vaporizers MAY be in some jurisdictions) is the intent behind it.

For more than most anyone would want on the subject, I found an old Federal Prosecution Manual on paraphernalia (1991). I don't think you'll find much different here than from what I've already been saying.

https://www.ncjrs.gov/pdffiles1/Digitization/134764NCJRS.pdf
 
Tranquility,
  • Like
Reactions: bossman

Brewervapesalot

Well-Known Member
Actually, it is. If you want to continue.

At least we'll know what facts you're relying upon, the jurisdiction and the actual law you want discussed.

As to your challenge, there is no vaporizer case I know of directly. In trying for intellectual property protection, the court did mention a vaporizer as being different from the traditional things (related to tobacco) where an exemption to paraphernalia law could be found.
REPUBLIC TECHNOLOGIES (NA) v. BBK TOBACCO & FOODS, 262 F. Supp. 3d 605 (2017):
Nevertheless, Republic identifies at least one HBI trademarked product — a vaporizer — that does not incontrovertibly fall under the exemption. In some contexts, vaporizers have been deemed drug paraphernalia. Cf. In Re JJ206, LLC, DBA Juju Joints, 120 U.S.P.Q.2d 1568 (T.T.A.B. Oct. 27, 2016) (affirming refusal to register trademark for use with marijuana vaporizing devices). Whether HBI's device constitutes drug paraphernalia is a factual question that cannot be resolved at the motion-to-dismiss stage. See, e.g., United States v. Assorted Drug Paraphernalia, 90 F.Supp.3d 1222, 1229 (D.N.M. 2015) (denying summary judgment on forfeiture claim on the ground that genuine dispute of material fact as to whether scales and other items were drug paraphernalia within the meaning of § 863(d)). Because I cannot say as a matter of law that none of HBI's registered products violates the Controlled Substances Act, I deny HBI's motion to dismiss Republic's cancelation claim insofar as it is based on allegations that HBI's products are used in unlawful commerce.​


To an ordinance written much like the Texas one including evidence factors, DISC & TAPE, INC. v. CITY OF MOORHEAD, Dist. Court, Minnesota 2012:
Representatives of the City police department visited Discontent on December 21, 2011, before the Ordinance went into effect. A transcript of an audio recording of that visit has been submitted by Plaintiffs. (Tepley Supp. Aff., Ex. A.) During the visit, police officers identified to Plaintiffs the items in Discontent that the officers considered to be drug paraphernalia and therefore prohibited by the Ordinance. Such items included "water bongs," "short metal and glass pipes," and "vaporizers." (Id. at 5-7.) The officers also identified items, such as "traditional hookahs," "traditional pipe," "scales," and "grinders" which would not be considered drug paraphernalia under the Ordinance. (Id.)

According to the transcript, the officers stated that "nobody is going to jail over this." (Id. at 1.) Instead, the officers stated that, once the Ordinance went into effect, they would visit the shop and determine if drug paraphernalia was still being sold. If the shop was not in compliance with the Ordinance, the officers "would issue citations and . . . have a court date issued then." (Id. at 2.)​


In Moorhead, the head shops sued to prevent the enforcement of the statute. The court held the statute was fine. While we don't have an example of the person getting arrested for a vape--without anything else--we have an example of the police telling a guy he's going to be arrested for it and the court saying :tup:

Like I said, out of the--dare I say well over a million--vaporizers sold for the last decade or so, not a single court case can be cited in any US jurisdiction that an unused vaporizer by itself is a crime.

As for used vaporizers, clean them well, have nothing else with you illegal, and you have a microscopic chance of any issue. Better, just buy a new cheapy to travel with (Mv1 qualifies now, lol) and give away before returning home. Issue solved.

P.s. Again cases that challenge the constitutionality of any statute shed no light on this issue. Neither do intellectual property cases. Cops will do anything until a court tells them "no." The fact cops are not arresting is enlightening. Last, courts dont issue advisory opinions so your last case doesn't shed any light on this issue either.
 
Last edited:
Brewervapesalot,
  • Like
Reactions: Slotheus

Tranquility

Well-Known Member
Like I said, out of the--dare I say well over a million--vaporizers sold for the last decade or so, not a single court case can be cited in any US jurisdiction that an unused vaporizer by itself is a crime.

As for used vaporizers, clean them well, have nothing else with you illegal, and you have a microscopic chance of any issue. Better, just buy a new cheapy to travel with (Mv1 qualifies now, lol) and give away before returning home. Issue solved.

P.s. Again cases that challenge the constitutionality of any statute shed no light on this issue. Neither do intellectual property cases. Cops will do anything until a court tells them "no." The fact cops are not arresting is enlightening. Last, courts dont issue advisory opinions so your last case doesn't shed any light on this issue either.

Challenging the constitutionality certainly does shed light on the issue. The courts have repeatedly found the interpretation I laid out about what paraphernalia is is constitutional. There can be no real question a vape that has never been used can be illegal under the law.
 
Tranquility,

macbill

Oh No! Mr macbill!!
Staff member
Sitting in San Diego airport, I just finished a 100 mg Kiva. Bar. TSA went through my carry-on because I had a bunch of suspicious avocados. My PAX Eras and Solo II were left untouched. Back to shitty weather. I think I’ll Palm a hit and blow through my Philter while no one is nearby.

Success!
 

Brewervapesalot

Well-Known Member
Challenging the constitutionality certainly does shed light on the issue. The courts have repeatedly found the interpretation I laid out about what paraphernalia is is constitutional. There can be no real question a vape that has never been used can be illegal under the law.

Challenging the constitutionality of any statute is essentially challenging whether the statute exists or not. If you win, the statute is literally erased from the code.

(Note I am a discussing facial challenges to statutes as that is what the cases you cite analyze, not as-applied challenges, but either type of challenge is irrelevant here)

Constitutional challenges to the statute at issue has nothing to do with whether the prosecutor proved someone guilty or not, i.e., whether the elements of the law, applied to the facts, are met in a particular case, at trial.

In other words, when you challenge the constitutionality of a statute--you're saying the statute doesnt exist because if it did it would violate the constitution. The defendant with such defense is saying I cant be guilty precisely because there is no law to violate. That's MUCH different than saying I did not do what I am accused of.

He or she avoids the entire issue that we are discussing in this thread--whether a law on paraphernalia can include vaporizers, under different factual scenarios--because such defendant is saying the law defining paraphernalia doesn't exist in the first place.

(In the cases you cite, for example, the defendant argued that statute at issue did not include a scienter or mens rea component, i.e., state of mind element, which nearly all common law going back hundred of years has always had. Thus, the defendant said the statute at issue couldn't be constitutional. The circuit court disagreed, said laws dont necessarily need that.... my point is that such theoretical analysis has zero to do with what we are discussing in this thread. The cases are irrelevant....)

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.

In sum, cases that discuss the constitutionality of a law, discuss exactly that, nothing to do with guilt or innocence.

(As to guilt or innocence, not constitutionality,) Unused vaporizers are not paraphernalia unless you have weed on you, unless they have resin from weed on them, unless your selling weed when you have it on you, or the like....

The middle scenerio is the least likely to raise any eyebrows of the law.

As a practical matter, on the left coast, weed essential isnt a crime unless your dealing or have enough to make cops think you're dealing. Where you live may vary.

Clean your vaporizer well and your likely fine to travel. I do it all the time. Buy a new cheapy and give it away before returning home, if you're more concerned...

:2c::peace::leaf: cant find the beating a dead horse icon...:shrug:
 
Last edited:

Tranquility

Well-Known Member
Clean your vaporizer well and your likely fine to travel. I do it all the time. Buy a new cheapy and give it away before returning home, if you're more concerned...
Why clean it? Does residue make it paraphernalia? Why?

I've given the law and my reasoning applied to the law and the court cases that support that reasoning. I don't think your argument has risen to that level yet and I don't really see you distinguishing any of the issues so can't really keep going. Beating a dead horse indeed. If you have an actual case or issue, let me know and we can discuss it further.

But, for fun, let's say we have a brand new, fresh off the line, vaporizer. No, not that, a brand new, fresh off the tree, apple. We have an apple. Does it ever become paraphernalia?

1. Friend who likes to eat apples pull two from the tree.
2. Eats one and hands the other to you.
3. You say I don't like apples.
4. He says you can use it for other things.
5. He then carves out a path in the apple and holds it up to his mouth and sucks in.
6. You say, I bet we could smoke something out of that.
7. He hands you the apple and you put in a bit of tin foil and take a suck.
8. You hand it back to friend and he pulls out some weed and puts it in.
9. He lights it and hands it to you.
10. You take a hit.
11. He tells you it is illegal cannabis in the apple.

The answer is, yes, it becomes paraphernalia at some point. Depending on different factors as were laid out in the constitutional cases we know that for some definitions we need to look at design factors and others intent, but I think we both agree that at least by number 11, that apple can be charged.

We ALSO know that for some of the definitions, if we could read minds, that apple could have been paraphernalia back at #1. If the friend had the intent to use the apple at the time to carve a pipe to smoke the ganja, the apple was paraphernalia. (At least as to the friend.)

How the actual intent comes into play and how a more objective standard comes into play can be complex and proving it is hard. Which is why we all agree that no one is likely to go to jail over a clean vape, or a dirty one, if found by TSA.

That does not mean one could not talk oneself into getting legally arrested for it. Maybe even convicted, depending on the facts.
 
Tranquility,
  • Like
Reactions: macbill

Brewervapesalot

Well-Known Member
Why clean it? Does residue make it paraphernalia? Why?

***

7. He hands you the apple and you put in a bit of tin foil and take a suck.
8. You hand it back to friend and he pulls out some weed and puts it in.
9. He lights it and hands it to you.
10. You take a hit.
***

The answer is, yes, it becomes paraphernalia at some point.

Residue from an illegal substance is exactly what makes a vaporizer paraphernalia. That's either rhetorical or a stupid question.

The apple example is a classic example of a non-illegal product becoming illicit.

Legal product + connection to illegal substance or illegal act regarding illegal substance = paraphernalia.

Intent has nothing to do with it unless the statute has a mens rea or scienter requirement. The statutes you cite have no such requirement.

As a side note, I think since the English common law, at least, all criminal laws have traditionally required a scienter element--but federal law broke that tradition. Its bullshit but that battle has been lost. And that is the only (irrelevant to this thread) take away from the cases you cite.
 
Last edited:
Brewervapesalot,
  • Like
Reactions: Slotheus

Tranquility

Well-Known Member
Residue from an illegal substance is exactly what makes a vaporizer paraphernalia. That's either rhetorical or a stupid question.
As noted previously, residue is only one indicator.
(2) the existence of any residue of a controlled substance on the object;​

It is not the sole indicator. For instance, dropping a little residue on your car does not make your car paraphernalia.

The apple example is a classic example of a non-illegal product becoming illicit.
Yes, that's why I used it.

Legal product + connection to illegal substance or illegal act regarding illegal substance = paraphernalia.
We are well past such imprecision. I agree in general. But, what is the "connection"? That's what I was trying to point out in the exercise. Choose a number. Explain why.

Intent has nothing to do with it unless the statute has a mens rea or scienter requirement. The statutes you cite have no such requirement.
I agree intent may not be relevant to certain determinations. There the design is more important. These are the objective test I've written about where the "designed for use" aspect of a vape or "marketed for use" is key. But, again, imprecision is here. Are you talking about federal paraphernalia law under 863 or a state's law under the model act? Or, something else?

But, even if there is objective criteria as to if an item is paraphenilla, to convict of possession (on a model act) there is still a mens rea:
To say that the definition of "drug paraphernalia" is objective and does not depend on a defendant's subjective intent is not to say that there is no scienter requirement in the Ordinance. The Ordinance itself provides:

A person may not deliver . . . drug paraphernalia, if that person knows or should reasonably know that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, enhance, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of Minnesota Statutes Chapter 152.
Ordinance § 1.B. Thus, after establishing that a particular item sold or distributed by a defendant meets the objective definition of "drug paraphernalia," the City will have to show that a defendant knew or reasonably should have known that the item would be used with illegal drugs.[2] The City does not have to prove "overt manifestation of specific intent by the possessor or distributor," as Plaintiffs contend. (Plaintiffs Mem. at 10 (emphasis added).) This knowledge scienter requirement helps the Ordinance "avoid[] any [constitutional] vagueness problem." Posters `N' Things, 511 U.S. at 526.
As long as we're in the designed area of the law, look at this article:
https://www.arentfox.com/perspectiv...rk-registration-cannabis-vaporizer-goes-smoke

See In re Canopy Growth Corporation by assignment from JJ206, LLC, Serial Nos. 86475885 & 86475899 (T.T.A.B., July 16, 2019).

A Canadian corporation, Canopy Growth Corporation (Applicant), filed two United States trademark applications – JUJU RX and JUJU HYBRID in standard characters – for smokeless cannabis and marijuana vaporizers based upon an intent-to-use the marks in commerce under Section 1(b) of 15 U.S.C. § 1051(b). The Examining Attorney for each application refused registration due to an absence of a bona fide intent to use the marks in lawful commerce.

On appeal, the TTAB agreed with the Examining Attorneys that the identified goods – vaporizers for cannabis or marijuana – were unlawful drug paraphernalia under the CSA as marijuana remains a controlled substance under the CSA. Because Applicant’s identified goods fell within the definition of illegal drug paraphernalia under the CSA, the Applicant could not have a bona fide intent to use the marks in lawful commerce. The TTAB, relying on a 2016 precedential decision, In re JJ206, LLC, 120 U.S.P.Q.2d 1568 (T.T.A.B. 2016), also rejected Applicant’s reliance on state marijuana laws that have legalized cannabis or marijuana, reasoning “the federal CSA is conclusive on the lawfulness issue for purposes of obtaining a federal trademark registration.”
The actual case is at http://ttabvue.uspto.gov/ttabvue/ttabvue-86475885-EXA-19.pdf
 
Last edited:
Tranquility,
  • Like
Reactions: macbill

macbill

Oh No! Mr macbill!!
Staff member
This trip I had much success in stealthful vaping. Bumped to 1st Class, I was feeling sorry for myself because I don't drink adult beverages when I found out how easily I could bring my ERA to my mouth, take a one-light hit (so as to minimize coughing fits) and blow out through my "Philter". Of course, being a short, fat, old, poorly-dressed man is perfect cover for nefarious deeds. No one sees me. I'm invisible.

I'm either extremely clever or monumentally stupid. Reminds me of the time I got busted for pot in high school. Usually, behind the backstop was a great location to smoke a dube, that is, until baseball season began.
 
Last edited:

Brewervapesalot

Well-Known Member
As noted previously, residue is only one indicator.
(2) the existence of any residue of a controlled substance on the object;​

It is not the sole indicator. For instance, dropping a little residue on your car does not make your car paraphernalia.


Yes, that's why I used it.


We are well past such imprecision. I agree in general. But, what is the "connection"? That's what I was trying to point out in the exercise. Choose a number. Explain why.

I agree intent may not be relevant to certain determinations. There the design is more important. These are the objective test I've written about where the "designed for use" aspect of a vape or "marketed for use" is key. But, again, imprecision is here. Are you talking about federal paraphernalia law under 863 or a state's law under the model act? Or, something else?

But, even if there is objective criteria as to if an item is paraphenilla, to convict of possession (on a model act) there is still a mens rea:
To say that the definition of "drug paraphernalia" is objective and does not depend on a defendant's subjective intent is not to say that there is no scienter requirement in the Ordinance. The Ordinance itself provides:

A person may not deliver . . . drug paraphernalia, if that person knows or should reasonably know that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, enhance, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of Minnesota Statutes Chapter 152.
Ordinance § 1.B. Thus, after establishing that a particular item sold or distributed by a defendant meets the objective definition of "drug paraphernalia," the City will have to show that a defendant knew or reasonably should have known that the item would be used with illegal drugs.[2] The City does not have to prove "overt manifestation of specific intent by the possessor or distributor," as Plaintiffs contend. (Plaintiffs Mem. at 10 (emphasis added).) This knowledge scienter requirement helps the Ordinance "avoid[] any [constitutional] vagueness problem." Posters `N' Things, 511 U.S. at 526.
As long as we're in the designed area of the law, look at this article:
https://www.arentfox.com/perspectiv...rk-registration-cannabis-vaporizer-goes-smoke

See In re Canopy Growth Corporation by assignment from JJ206, LLC, Serial Nos. 86475885 & 86475899 (T.T.A.B., July 16, 2019).

A Canadian corporation, Canopy Growth Corporation (Applicant), filed two United States trademark applications – JUJU RX and JUJU HYBRID in standard characters – for smokeless cannabis and marijuana vaporizers based upon an intent-to-use the marks in commerce under Section 1(b) of 15 U.S.C. § 1051(b). The Examining Attorney for each application refused registration due to an absence of a bona fide intent to use the marks in lawful commerce.

On appeal, the TTAB agreed with the Examining Attorneys that the identified goods – vaporizers for cannabis or marijuana – were unlawful drug paraphernalia under the CSA as marijuana remains a controlled substance under the CSA. Because Applicant’s identified goods fell within the definition of illegal drug paraphernalia under the CSA, the Applicant could not have a bona fide intent to use the marks in lawful commerce. The TTAB, relying on a 2016 precedential decision, In re JJ206, LLC, 120 U.S.P.Q.2d 1568 (T.T.A.B. 2016), also rejected Applicant’s reliance on state marijuana laws that have legalized cannabis or marijuana, reasoning “the federal CSA is conclusive on the lawfulness issue for purposes of obtaining a federal trademark registration.”
The actual case is at http://ttabvue.uspto.gov/ttabvue/ttabvue-86475885-EXA-19.pdf


You're like a dog with a bone. You're citing an intellectual property (again) case to determine a criminal issue.:bang::goon::mental::hmm::zzz::rolleyes: It's retarded and any judge would ignore you in a criminal trial. If you think I'm wrong, show me a criminal case that cites to an intellectual property case regarding vaporizers....

Moreover the case you cite is a total outlier. The idiot manufacturer tried to patent a "weed" vaporizer under federal law. Weed is illegal federally. You cant patent something for an illegal use. All the manufacturer had to do was say the vaporizer was not for weed, and they get a patent just like every other vaporizer manufacturer.

I'm bored with this because I'm repeating myself. You're just googling random cases for the word vaporizer and taking things out of context.

Bottom line for anyone who cares:

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.

My last point before retiring from this thread is this:

There is a reason why vaporizer manufacturers are not prosecuted for paraphernalia. They dont make paraphernalia. They make vaporizers that are perfectly legal.

People turn vaporizers into paraphernalia by using them with weed. The easiest evidence (to show this) is residue. That's why when you return a vaporizer they ask u to clean it well.

I'm done, you can have this thread. OTHERS PLEASE don't listen to this guy... He has no idea what he is talking about.
 
Last edited:
Brewervapesalot,
  • Like
Reactions: Slotheus
Top Bottom