Drug Paraphernalia vs. Everyday Items in Florida: How Courts Decide

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

In Florida, possession of drug paraphernalia (Fla. Stat. 893.147) is a very serious offense. Use of or possession with intent to use drug paraphernalia is considered a first-degree misdemeanor, punishable by up to 1 year in jail and a $1,000 fine.

Drug paraphernalia is defined as any item or object used, intended to be used, or designed to be used for any of the following purposes:

• Planting, cultivating, growing, harvesting, manufacturing, preparing, testing, analyzing, storing, containing, concealing, or packing a controlled substance, or;
• Injecting, ingesting, inhaling or introducing any controlled substance into the human body

Someone may be convicted of manufacture or delivery of drug paraphernalia, a third-degree felony (up to 5 years in prison and a $5,000 fine) if that person:

• Delivers, possesses with intent to deliver or manufactures drug paraphernalia with the intent to deliver it to another person 
• Knew or reasonably should have known it would be used for any of the above purposes (planting, injecting, etc.)

But it often isn’t obvious whether an item is paraphernalia or not. This is because items are often dual-use (such as baggies or scales) – they may be used innocently or in connection to unlawful drug activity.

So, how do Florida courts decide whether or not an item is paraphernalia when a paraphernalia possession charges hinge on this determination? This blog will answer that key question.

For someone to have committed the offense of use or possession with intent to use drug paraphernalia, the following must be proven beyond a reasonable doubt by the State:

• The defendant knew of the paraphernalia’s presence and had the ability to control it (constructive possession), or physically possessed it (e.g. having it in their hands or within their immediate reach)
• The defendant knew the item was drug paraphernalia (or either used or intended to use it as such)
• The item qualifies drug paraphernalia under Florida law

The State must prove all of the following for someone to be convicted of drug paraphernalia use or possession with intent to use on a theory of constructive possession: 

• The defendant had knowledge of the contraband 
• The defendant had the ability to exercise dominion and control over the contraband 
• The defendant had knowledge of the illicit (illegal) nature of the contraband (Nugent v. State, 275 So.3d 721 (Fla. 2d. DCA 2019))

In many paraphernalia possession cases, the central question is whether the item qualifies as drug paraphernalia.

Some of the most common situations leading to drug paraphernalia charges in Florida include:

• Someone is found with a crack pipe
• Someone is found with a bong 
• Someone is found with rolling paper (especially near marijuana)

Even if these items are found, a conviction is not guaranteed, as the State must prove knowledge of the item, ability to control it, and use or intent to use it for a drug-related purpose. However, these items are generally accepted as paraphernalia if evidence exists tying them to actual drug use or intended use.

In many cases, certain items may have an innocent use or may be paraphernalia, making courts more reluctant to designate these as paraphernalia. Those items include:

• Aluminium foil
• Hollowed out pens
• Spoons 
• Plastic baggies
• Scales

In cases where an item is charged as paraphernalia, Florida’s courts the following factors (under Fla. Stat. 893.146) in evaluating whether this designation is proper:

1. Statements by the owner or the person in control of the object regarding its use
2. The proximity of the object to controlled substances or violations of drug laws (e.g. the closer the item is, the more likely it is to be considered paraphernalia if dual-use)
3. The presence or lack of residue of controlled substances on the object (e.g. crack residue on aluminum foil)
4. Evidence of intent to deliver the object to someone who intends to use it for drug-related purposes (text communications, etc.)
5. Instructions or descriptive materials accompanying the object (e.g. something explaining how to use it to consume or manufacture drugs)
6. Advertising concerning the product’s use (is it generally considered a benign item or is it advertised as paraphernalia in many contexts)
7. The manner in which the object is/was displayed for sale
8. Whether the owner is a legitimate supplier of similar items (if the allegation is distribution or intended distribution of paraphernalia)
9. The ratio of sales of the object to the total sales of the business
10. The existence and scope of legitimate uses for the object in the community
11. Expert testimony regarding the object’s use

These factors have been applied in many cases. For example, one Florida court held that a rolled-up dollar bill found during a drug-related arrest of a defendant – without evidence of drug residue on it or proximity to the drugs – could not be classified as paraphernalia. Chandler v. State, 185 So.3d 1286 (Fla. 5th DCA 2016)

Courts have found that a scale cannot be deemed drug paraphernalia in the absence of evidence of its use or intended use for weighing controlled substances, as scales have a legitimate purpose. Grady v. State, 753 So.2d 744 (Fla. 3d. DCA 2000). However, a scale that is found near drugs (such as marijuana) may be deemed paraphernalia because of its proximity to a controlled substance. Subuh v. State, 732 So.2d 40 (Fla. 2d. DCA 1999)

Even if a crack pipe or other item without a clear lawful alternative use is found, a drug paraphernalia possession charge cannot be supported if there is a total absence of evidence of the defendant’s actual drug use or intended use. Goodroe v. State, 812 So.2d 586 (Fla. 4th DCA 2002). 

The 4th DCA ruled there was insufficient evidence to support Goodroe’s conviction of paraphernalia possession for possessing a crack pipe. The court reasoned that even though “residue” was allegedly found on the pipe, the residue was never tested. Thus, there was no actual evidence that the pipe had been used (or was intended to be used) in drug activity.

Note: If someone sells a drug within a container (such as cocaine within a plastic baggie), they may not be convicted of sale of the drug and sale of paraphernalia (the container) for the same transaction. McCray v. State, 531 So.2d 408 (Fla. 1st DCA 1988)

Courts have also held that as a matter of law, mere presence in a room with drugs and drug paraphernalia – even if in plain view – is insufficient to convict someone of paraphernalia or drug possession when there are other people in the room. Wade v. State, 558 So.2d 107 (Fla. 1st DCA 1990)

Moreover, testimony that an item is “generally used” for a particular purpose, if no drugs or residue were found in connection with that item, is insufficient to support a possession of drug paraphernalia conviction. Waters v. State. 694 So.2d 148 (Fla. 1st DCA 1997)

So, when is an item considered drug paraphernalia in Florida? The answer is: it depends. Courts use the factors outlined in Fla. Stat. 893.146 to determine whether an item legally qualifies as paraphernalia. These factors include statements by the alleged possessor, the proximity of the alleged paraphernalia to drugs, the presence or lack of residue, and more.

For items that have a legitimate and widespread legal alternative use (such as bags and scales), courts hesitate to classify this as paraphernalia if there is not clear evidence of their connection to drug use. But even if an item does not have many (or any) alternative uses, courts still require proof of the defendant using or intending to use the item in drug-related activity.

If someone is concerned about a charge of possession of drug paraphernalia, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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