Hamburg Drug Paraphernalia Rules Could Carry Constitutional Baggage

[bobandtorey]

A new Hamburg Township ordinance allowing police to confiscate and dispose of drug-related devices could violate residents’ constitutional protections, a local attorney said.

 

The township Board of Trustees approved the ordinance this month.

 

It prohibits the possession or delivery of a list of 18 items considered to be used in using, growing, manufacturing, processing, storing, testing or concealing drugs.

 

The ordinance carries civil infraction penalties ranging from $50 for a first offense to $400 for a fourth offense for possessing or delivering the devices — such as

 

marijuana bongs and pipes, cocaine vials and hypodermic syringes — “primarily adapted or designed for the administration or use of any controlled substance.”

 

The ordinance, which takes effect Sept. 23, is an attempt to reduce the flow and use of drugs in the community, township officials said.

 

Heroin overdoses and related deaths have been prevalent in the Pinckney area for the past several years.

 

The ordinance gives officers the ability to seize and dispose of drug paraphernalia without a civil proceeding.

 

The rule allows officers to determine what constitutes drug paraphernalia and deprive residents of their day in court, said Denise Pollicella, an attorney active in medical

 

marijuana search-and-seizure cases.

 

“They’re making them the judges and the juries, by the way. There are several constitutional violations here, as far as I’m concerned,” Pollicella said.

 

“You can put anything in these. It doesn’t mean you’re using drugs,” she added. “I get where they’re going. I’m just not sure it’s going to accomplish it.”

 

She said there are several Michigan communities with drug paraphernalia ordinances, but that Hamburg’s is likely the first to allow officers to seize and dispose of the

 

items.

 

“Controlled substance” is defined in the ordinance as any drug defined in the Michigan Public Health Code. “Controlled substance” in the statute can include drugs

prescribed legally, such as Vicodin and asthma medication, Pollicella said.

 

Police Chief Richard Duffany said the ordinance helps officers detain suspects when only paraphernalia is found, demand their identification and file criminal charges if

 

they lie to officers. Duffany said state law doesn’t give officers those powers when handling drug suspects found with drug-related devices only.

 

The ordinance also prohibits residents from being in buildings or vehicles where drugs or drug paraphernalia are being used, made or stored.

 

It requires those with prescriptions for drugs on the controlled-substances list to keep the medications in their original packaging or containers while driving.

 

The ordinance does not apply to state-approved use or growth of medical marijuana.

 

“Basically, what it does is provide our officers with tools in their efforts to conduct drug investigation, drug enforcement,” Duffany said at the recent township Board of

 

Trustees meeting.

 

“It really provides us with some invaluable investigative tools when we’re doing drug enforcement on the street,” he added.

 

Duffany said the same ordinance has helped Wayne County communities combat local drug use and delivery.

 

Township Attorney John Drury said the ordinance fills a gap in state law that does not provide officers the ability to confiscate drug-related devices.

 

Drury said the ordinance, like any law, could draw constitutional challenges, but that it will better equip officers on the street.

 

He said Hamburg is likely the first Livingston County community to adopt such an ordinance, and that he expects other county governments to adopt the same policy.

 

Township Supervisor Pat Hohl said recent drug-related deaths in Hamburg, Putnam and Northfield townships highlighted the need for more local “tools” to fight drugs.

 

Hohl said the ordinance is part of an effort to curb drug use in the community, including anti-drug education efforts and placement of police officers in all schools in

 

Pinckney Community Schools.

 

“This is one more push to try to keep Hamburg the safest community in the state. It’s not something you achieve and sit on your laurels,” he said.

 

“We’re not out to play Gestapo,” Hohl added.

 

 

http://www.livingstondaily.com/story/news/local/community/hamburg-township/2014/08/27/hamburg-drug-rules-raise-constitutional-issues/14712329/

Edited August 28, 2014 by bobandtorey