O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd.

Pipe Not Drug Paraphernalia

State v. Martinez

In October of 1993, officers from the Rock and Walworth County sheriff’s departments executed a search warrant for the premises occupied by Juan Martinez.  During a pat down of Martinez, one of the officers found a “Dr. Grabow” pipe in Martinez’s pocket.  The pipe contained THC residue and Martinez was charged with possession of drug paraphernalia.  The trial court found Martinez guilty and Martinez appealed. 

Wis. Stat. § 961.573 provides “No person may use, or possess with the primary intent to use, drug paraphernalia to…inhale or otherwise introduce into the human body a controlled substance…”  Drug paraphernalia is defined, by Wis. Stat. § 961.571(1)(a), as “…all equipment, products and materials of any kind that are used, designed for use or primarily intended for…inhaling or otherwise introducing into the human body a controlled substance…”  Subsection (b)(2), however,  excludes from drug paraphernalia “Any items, including pipes, papers and accessories, that are designed for use or primarily intended for use with tobacco products.”

Like many pipes, the pipe found in Martinez’s pocket, the “Dr. Grabow” pipe, could be legally purchased in Wisconsin stores because it was intended for use with tobacco products.  The Court of Appeals ruled that a pipes actual use is irrelevant.  Thus, subsection (b)(2) excluded the pipe found in Martinez’s pocket from the definition of drug paraphernalia regardless of the fact that  it was being used for THC and had THC residue in it.

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