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Can the Police Arrest You for Having a Plastic Vial in Your Pocket?

Criminal drug laws do not just apply to controlled substances. They also make it illegal to possess certain items as “drug paraphernalia,” which can include anything that may be used to store a controlled substance. For example, a vial or a plastic bag may be considered drug paraphernalia. This means that if the police lawfully detain you and find such paraphernalia on your person, that can provide probable cause to arrest and charge you with a crime.

Cecil County Man Receives Six-Year Prison Term for Possession of Fentanyl

A recent unreported decision from the Maryland Court of Special Appeals, Behrenshouser v. State, provides a case in point. This case began when two officers with the Elkton Police Department questioned a suspect in a drug investigation. The suspect consented to a search of his phone, which revealed he was working with another person to illegally sell fentanyl.

Sometime later that day, the same officers happened to encounter this other person–the defendant in this case–jaywalking across Route 40. As this was causing traffic to slow, the officers decided to make contact with the defendant and two other individuals traveling with them. The officers said they “immediately recognized” the defendant from the evidence they gathered earlier from their initial suspect’s phone.

One of the officers approached the defendant. He noticed a “clear plastic vial in a zip-lock bag” sticking out of the defendant’s pocket. The officer assumed this was drug paraphernalia. Later in court, the officer testified that during his time with the Baltimore Police Department, he had seen “very similar” plastic vials used to transport fentanyl. The officer added that he was unaware of any use of such vials except for packaging drugs, although he admitted under cross-examination “they could be used for science experiments.”

The officer decided to arrest the defendant on the spot. A subsequent search of the defendant at the police station uncovered over 200 units of fentanyl. Prosecutors charged the defendant with possession of fentanyl with intent to distribute. Before the trial court, the defendant moved to suppress all of the evidence obtained by the police, arguing the initial decision to arrest him based on the vial sticking out of his pocket was not supported by “probable cause.”

Both the trial judge, and later the Court of Special Appeals, disagreed. The appellate court explained that based on the officer’s prior investigation–where he recovered information from the cell phone search specifically tying the defendant to the sale of fentanyl–and the presence of apparent drug paraphernalia, that was sufficient to “warrant a man of reasonable caution” to believe the defendant was involved in some form of drug-related crime.

The defendant received a six-year prison sentence after conceding the state had sufficient evidence to convict him at trial.

Contact Charles County Criminal Defense Attorney Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.