Supreme Court to Rule in Drug Paraphernalia Case

IN THE COURTS November 1995

The U.S. Supreme Court has agreed to hear a case involving a dispute over the statutory meaning of "drug paraphernalia" and Congress' authority to regulate it (Janus Industries v. U.S., 57 CrL 3105, No. 94-2123, for background, see U.S. v. Janus Industries, Nos. 94-1074, 94-1075, 94-1113, and 94-1114, 48 F.3d 1548 (10th Cir. 1995)).

The case stems from a 1991 U.S. Customs Service investigation called "Operation Pipe" of possible drug paraphernalia stores or "head shops" in Colorado and Wyoming. During a raid of one of the stores, agents learned that another shop, the Acapulco Smoke Shop, was possibly a major supplier of drug paraphernalia in the Denver area. An undercover agent was sent into the shop, where he reportedly saw drug paraphernalia on the shelves. According to the agent, Janus told him that he should buy what he wanted that evening because the "narcos were out" and he had "trimmed his shelves."

A search warrant was prepared for the shop, listing "[a]ny and all drug paraphernalia" and related business records as targeted items. Because the agents had information that Janus may be in the process of concealing some of the paraphernalia, they ordered the location secured before the warrant was executed. While officers were guarding the location, they heard a "commotion" in an upstairs bedroom.

When the warrant was served, agents found a hydroponic garden set up in a closet upstairs. Although the lights were on and the soil was wet, there were no plants. In the course of the search for business records, one of the agents discovered a drawer with a false compartment. Inside he found seven uprooted marijuana plants with wet soil on the roots.

Janus lost his case in district court, and appealed to the Tenth Circuit Court of Appeals. He made a motion to suppress the marijuana and paraphernalia evidence at trial, arguing that the search warrant was too vague. Under 21 U.S.C. §863, "drug paraphernalia" is defined as:

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 chapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body.

The statute outlines conditions for judging whether material is paraphernalia, such as the way the item is displayed for sale or the likelihood that the item would be used for legitimate purposes, such as for smoking tobacco. The Fourth Amendment requires that searches be conducted for particular items, and Janus said the mention of "drug paraphernalia" was overly broad.

Janus also argued that Congress could not regulate the sale of drug paraphernalia because a connection was not shown between its sale and the effect on interstate commerce. Although he conceded that Congress does often regulate intrastate commerce without showing an explicit connection between the sale and interstate commerce, he argued that 21 U.S.C. §863 was unconstitutional because it lacked that specification.

The Court of Appeals found that the search warrant's noting of "drug paraphernalia" was not overly vague. It also found that Congress was not required to spell out the connection between intrastate drug paraphernalia sales and interstate Commerce. In addition, it found that sales of drug paraphernalia are related to the drug trafficking industry, over which Congress has assertd authority under the Commerce Clause (see 21 U.S.C. §801 (6)).

Janus is appealing the case to the Supreme Court on three issues, including the argument that Congress does not have authority over drug paraphernalia sales. Last term, the Court invoked the Commerce Clause when it found that Congress could not ban possession of a firearm within 1,000 feet of a school because there was no connection between such activity and interstate commerce (U.S. v. Lopez, 57 CrL 2033, No. 93-1260, 115 S.Ct. 1624 (USSCt 1995)).

Janus is also using the Commerce Clause to argue that the indictment against him should have specified the interstate element of the crimes with which he was charged. Finally, he is arguing that the drug paraphernalia statutes are too vague and are therefore a violation of the Fourth Amendment prohibition against unreasonable searches.