Summary of Legal Topics Covered in the Webinar: Rights and Protections for Harm Reduction Programs and Clients in an Increasingly Hostile Environment

Overview of Paraphernalia and Drug Possession Law

Federal law prohibits the unauthorized sale, import, and export of drug paraphernalia, as well as its transport via the mail or in interstate commerce. It does not, however, prohibit the simple possession or free distribution of drug paraphernalia. Further, the relevant federal law does not apply to any person authorized by local, state, or federal law to “manufacture, possess, or distribute” the paraphernalia. Therefore, if the activity is permitted under state and local law, it does not violate the federal paraphernalia law.

State laws are more nuanced. In some states, there are no laws prohibiting the possession or free distribution of paraphernalia; in others, syringes or other equipment are carved out of the paraphernalia law; and in still others distribution and possession are permitted in some circumstances but not others.  For a summary of state laws, see Drug Policy Alliance’s Interactive Map.

Both federal and state law generally criminalize the possession of a controlled substance unless the substance was obtained under a legitimate prescription or via other lawful means. Specifically, federal law makes it unlawful for:

“any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this chapter…”

A conviction under this statute carries up to a one-year sentence and $1,000 fine upon the first conviction, with more severe penalties for additional convictions. In practice, prosecutions for simple possession are rare under federal law, and typically occur in conjunction with larger investigations. Although federal law contains no lower limit on the amount of drugs necessary to violate the law, to the authors’ knowledge no SSP operator has ever been federally arrested, charged, or prosecuted for residual amounts of drugs contained in a returned syringe or other object, or for possession of small amounts of drugs incidental to drug checking.

Unlawful possession of a controlled substance is a criminal offense under every state’s law. The circumstances and severity differ by state. For a summary of state laws, see Drug Policy Alliance’s Interactive Map. The Harm Reduction Legal Project and Drug Policy Alliance are happy to provide specific, up-to-date information on the law in your state.

Know-Your-Rights Overview: 4th and 5th Amendments

The Fourth Amendment of the U.S. Constitution prohibits “unreasonable searches and seizures” by the government. That means police officers of all kinds—federal, state, and local—cannot enter private property or take personal belongings without your permission, unless specifically authorized by a court warrant or an exception applies. The Fourth Amendment’s protections are strongest in private homes. Organizations like businesses and nonprofits are still protected, but to a lesser degree.

Fourth Amendment protections turn on the “reasonable expectation of privacy.” If an area is held open to the public, it is also open to the police, because open access reflects low expectations of privacy. However, if access to an area is restricted—for example, behind a locked door, or requiring some credential or registration to enter—then the Fourth Amendment’s warrant requirement is more likely to apply. Note that the display of signs (like “Authorized Entry Only” or “Restricted Area”) does not guarantee legal protection. If the signs reflect actual practices, though, they could be helpful evidence in a court proceeding. 

Police do not need permission to search through anything that is openly visible—in “plain view”—such as documents sitting on a desk or material in an open trash can. But the warrant requirement does apply to anything in its own container and not generally accessible to the public; for example, an individual’s backpack or purse, a filing cabinet or closet only accessible by staff, or anything behind a lock.

There is a major caveat to these rules: consent. If the police are granted valid permission to enter a private space, or to look through a private container, they can do so without a warrant. Police often request consent to search, and they might apply pressure to get it, but there is no requirement to grant it to them. Because the officer’s request for consent to search may be covert, confusing, or indirect, it is a best practice to clearly, affirmatively state something like: “We are not consenting to entry in our private spaces,” or, “We are not consenting to any voluntary searches.” (One exception is in “exigent circumstances:” under emergency circumstances, police can enter private areas even without permission).

The Fifth Amendment provides various protections in the criminal legal system, including the right against self-incrimination (also known as the “right to remain silent”) and the right to have a lawyer present when questioned while under arrest. These rights protect individuals from being compelled to give information against their will. (There are exceptions. For example, some states have laws requiring presentation of identification to police on reasonable request.)

In the heat of the moment during a police encounter, it may be difficult to separate innocuous questions from potentially incriminating ones. It is generally best practice to calmly decline to answer any questions. It may be helpful for an organization to prepare a few scripted sentences to be used in case of high-pressure encounters: declining consent to searches; asserting the right to remain silent; and requesting a lawyer’s presence if under arrest. Note that if the police unfairly threaten or coerce someone into cooperation, legal relief may be available from a court later on.

Understanding these legal doctrines is an important first step, but it is also important to understand the practical realities. The existence of these rights or your assertion of them does not guarantee your protection. Rights may be violated, or the police may have a different view of what the law requires. During a police encounter, aside from calmly asserting these rights and recording evidence, it is best to practice de-escalation, not engage in conflict, and pursue legal relief from safety afterwards. Whether your rights were violated, and any remedy for that violation, can only be determined after an incident concludes, so building a relationship with a lawyer or a legal organization to call after an emergency is an important practice alongside knowing one’s rights.

Sample Statements/Questions During an Encounter with a Law Enforcement Officer:

• I do not consent to a search.
• Am I being detained/under arrest? Am I free to go?
• Do you have a warrant?
• I wish to remain silent. I want to speak with an attorney.

Red Cards (wallet-sized cards immigrants can carry to assert their rights, like remaining silent) are available here to download in English and in Spanish. For additional languages please contact the Coalition for Humane Immigrant Rights.

Important! Calmly assert your rights, but do not get in an officer’s way if they insist on searching your property, even if you believe the search is unlawful. Safety is the priority. Unfortunately, your rights are litigated after the fact in the courts.

What Can I Do Now to Prepare?

Programs should consider the following steps to prepare for possible law enforcement intervention:

• Create a protocol for responding to law enforcement and train staff/volunteers on the protocol
• Designate staff who are points of contact with law enforcement
• Provide staff, volunteers, and participants with know your rights information
• Establish a relationship with an attorney
• Meet with local policymakers to inform them of your program’s success and raise any concerns
• Consider changes to program structure to increase privacy (e.g., adding locks, moving services to a restricted area)

When should I contact an attorney?

Generally, all programs should consider establishing a relationship with an attorney who may be able to assist you should the need arise. An attorney can counsel you on federal, state, and local laws and help develop a plan for responding to law enforcement. Having a relationship with an attorney can reduce time and stress during a crisis and may be helpful in avoiding circumstances that lead to or intensify crises. If you do not have an established connection, consider making a list of possible attorneys that you can use in case of emergency.

The immediate priority after an arrest is to limit the time in jail for the arrestee. One way programs may wish to be prepared is by developing policies and procedures to pay bail/bond for employees and volunteers. There are various ways to do this that could be as simple as having a dedicated amount of money set aside for these kinds of emergencies. Establishing a relationship with a local bail fund in your area is another option. If your organization finds an attorney to partner with, ensure that a variety of staff members have that attorney’s contact information for emergencies.

How do I find an attorney?

In an emergency criminal law situation, it is important to connect with a local criminal defense attorney or the local public defender as soon as possible to get your people out of jail and/or prepared for court. It is a good idea to research local criminal lawyers that may be willing to represent your program staff at a discount rate or make a connection with your local public defender’s office before any arrests occur.

Outside of an emergency situation, you can reach out to the Harm Reduction Legal Project and/or the Drug Policy Alliance for potential assistance connecting with local attorneys. Your state or county bar association likely maintains a lawyer referral service, which can help connect you with an appropriate attorney. For civil legal services, you can also use the Legal Services Corporation website to find a legal aid provider near you. You may also try reaching out to your local ACLU affiliate.

Additional Resources

• Legal Action Center – Responding to Immigration Enforcement: A Guide for Substance Use Disorder Treatment Programs
• Protect Democracy – Nonprofit Toolkit: Resources for Organizations Facing Government investigations
• National Homelessness Law Center – ICE Raid Guidance for Homeless Service Providers
• Public Counsel – FAQs: Nonprofit and Small Business Rights with Respect to Immigration Enforcement
• Protect Democracy – Search Warrant Primer
• National Immigration Law Center – Warrants and Subpoenas: What to Look For and How to Respond
• ACLU – Know Your Rights

Contacts

Drug Policy Alliance – Kellen Russoniello, krussoniello@drugpolicy.org
Network for Public Health Law Harm Reduction Legal Project – harmreduction@networkforphl.org

Please note that this brief factsheet is intended only to provide a broad overview of relevant law. It is not legal advice and does not create an attorney-client relationship.