By Anthony Cotton
On the Defensive
Montel Williams was recently accused of possessing “marijuana paraphernalia” at Mitchell International Airport.
Williams was issued a citation. Williams, an outspoken advocate of medicinal marijuana, explained that he “forgot about the pipe,” which was found during a routine security screening.
Having been diagnosed with multiple sclerosis, Williams has found that marijuana provides medical benefits that are superior to standard prescription medications. Despite a growing medical marijuana movement across the country, and despite this issue being previously considered by the legislature, Wisconsin continues to outlaw marijuana possession. In actuality, there are only a select few cases where “paraphernalia” is prohibited. His case is almost surely not one of them.
Wisconsin’s paraphernalia statute defines “drug paraphernalia” as “all equipment, products and materials of any kind that are used, designed for use or primarily intended for use in … ingesting, inhaling or otherwise introducing into the human body a controlled substance.” However, the same statute that arguably prohibits the possession of marijuana paraphernalia excludes certain objects from its scope. These objects include: “[a]ny items, including pipes, papers and accessories, that are designed for use or primarily intended for use with tobacco products.”
Since 1997, Wisconsin case law has remained consistent on the question of what constitutes “paraphernalia.” Pipes which are primarily intended to be used with tobacco products are exempted from the law. This is true even if the pipe has been used to smoke marijuana and even if the pipe has marijuana residue in it. In State v. Martinez, 210 Wis. 2d 396, 563 N.W.2d 922 (Ct. App. 1997), the court noted that “the legislature has decreed that where an item is designed for use with tobacco products, it is excluded from the definition of drug paraphernalia regardless of the actual use to which the item may be put.” In other words, if a person buys a tobacco pipe but elects to smoke marijuana with it, the pipe would almost surely not constitute “paraphernalia” under the law.
Given the statements he supposedly made to law enforcement, it appears Williams may have used his pipe to “inhale marijuana.” However, given that most pipes are sold and marketed legally as tobacco pipes, his pipe is almost surely one which is exempted from the law. Williams is likely innocent of the allegations against him, as are thousands of defendants, each year, who find themselves prosecuted for similar behavior.
Anthony Cotton, a 2005 graduate of Marquette Law School, is a partner at Kuchler & Cotton Law Offices in Waukesha. He specializes in criminal defense in both state and federal courts. He was named a 2010 Up and Coming Lawyer by the Wisconsin Law Journal.