I think the reason why this doesn't sit right with police in the field is that it makes police look foolish to tell someone, "you're under arrest for possession of a controlled substance," search the person incident to that arrest, and then say, "whoops, sorry boss, have a nice day," since it can look, to an untrained observer (who doesn't read your PC articulation), like you just found an ultimately incorrect excuse to search someone. I guess one way to think of it is like a DUI arrest where a blood draw obtained by warrant ultimately comes back below the legal limit. It doesn't retroactively make the blood draw a violation of the suspect's rights.
First of all, the little baggie with the white residue is NOT Possession of Drug Paraphernalia. You test the white residue and let’s say it test positive for cocaine. You have Possession of a Controlled Substance (POCS), State Jail Felony here in Texas.
Considering the totality of the circumstances, yes, the baggie is drug paraphernalia, along with the straw. Every state calls it something different in the law. In my state (AZ) the residue alone would not be considered a usable quantity. Therefore, the prosecutors would only charge Possession of Drug Paraphernalia, a class 6 felony.
This is Radical my buddy Attorney Anthony Bandiero 😊
I think the reason why this doesn't sit right with police in the field is that it makes police look foolish to tell someone, "you're under arrest for possession of a controlled substance," search the person incident to that arrest, and then say, "whoops, sorry boss, have a nice day," since it can look, to an untrained observer (who doesn't read your PC articulation), like you just found an ultimately incorrect excuse to search someone.
I guess one way to think of it is like a DUI arrest where a blood draw obtained by warrant ultimately comes back below the legal limit. It doesn't retroactively make the blood draw a violation of the suspect's rights.
The paraphernalia alone is enough to arrest. You always search your arrestee so this is a non-issue.
@@Cp0455 Depends on the agency. Some have restrictions on misdemeanor arrests.
@@drkissinger1 right, but legally speaking, in most jurisdictions paraphernalia is an arrestable offense.
First of all, the little baggie with the white residue is NOT Possession of Drug Paraphernalia. You test the white residue and let’s say it test positive for cocaine. You have Possession of a Controlled Substance (POCS), State Jail Felony here in Texas.
Considering the totality of the circumstances, yes, the baggie is drug paraphernalia, along with the straw. Every state calls it something different in the law. In my state (AZ) the residue alone would not be considered a usable quantity. Therefore, the prosecutors would only charge Possession of Drug Paraphernalia, a class 6 felony.
The bag is paraphernalia, the powder is the controlled substance.