28-440. Drug paraphernalia; determination; factors considered.
In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
(3) The proximity of the object, in time and space, to a direct violation of this act;
(4) The proximity of the object to any controlled substance;
(5) The existence of any residue of a controlled substance on the object;
(6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to any person whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of sections 28-101, 28-431, and 28-439 to 28-444. The innocence of an owner, or of anyone in control of the object, as to a direct violation of sections 28-101, 28-431, and 28-439 to 28-444 shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
(7) Instructions, oral or written, provided with the object concerning its use;
(8) Descriptive materials accompanying the object which explain or depict its use;
(9) National and local advertising concerning its use;
(10) The manner in which the object is displayed for sale;
(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(12) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;
(13) The existence and scope of any legitimate use for the object in the community; and
(14) Expert testimony concerning its use.
Source
Annotations
The factors listed in this section are used to determine if the objects are actually drug paraphernalia, not whether officer had probable cause to believe they were drug paraphernalia. The list in this section is illustrative, not exclusive. State v. Sassen, 240 Neb. 773, 484 N.W.2d 469 (1992).
List of items exemplary of drug paraphernalia is not unconstitutional on ground that several factors would permit conviction based on transferred intent and guilt by association where, although actions of third parties are relevant in determining paraphernalia, evidence regarding third-party actions is but one step in prosecutorial scheme, and if third-party actions tend to indicate the item is drug paraphernalia, focus of inquiry must necessarily shift to intent of individual involved. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).
Reference to "other authority" is not unconstitutionally vague since "other authority" certainly refers to law enforcement personnel, and fact that statute attempts to guide such personnel in their enforcement duties lessens, rather than increases, danger of arbitrary enforcement. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).