Sometimes a Cigar Is Just a Cigar — at Least Where Illinois “Drug Paraphernalia” Law Is Concerned

So holds People v. Carreon (Ill. App. Ct. Oct. 31, 2011). Carreon was convicted of possession of cannabis and possession of drug paraphernalia; the alleged paraphernalia was a cigar used to smoke the cannabis. Not so, held the court (paragraph break added):

Section 2(d) of the Drug Paraphernalia Control Act (Act) (720 ILCS 600/2(d) (West 2008)) defines drug paraphernalia as “all equipment, products and materials of any kind *** intended to be used unlawfully in *** ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance.” Section 4 of the Act (720 ILCS 600/4 (West 2008)) exempts certain items from the definition of drug paraphernalia. Of relevance here is section 4(b), which exempts the following:

“Items historically and customarily used in connection with the *** ingesting, or inhaling of tobacco or any other lawful substance. Items exempt under this subsection include, but are not limited to, garden hoes, rakes, sickles, baggies, tobacco pipes, and cigarette-rolling papers.” 720 ILCS 600/4(b) (West 2008).

Section 4 of the Act further provides specific factors that should be considered in determining whether an item is exempt from the Act. The factors relevant to the issue before us are “the general, usual, customary, and historical use to which the item involved has been put” and “the existence and scope of legitimate uses for the object in the community.” 720 ILCS 600/4(d)(1), (d)(8) (West 2008)….

[I]t is readily apparent that the legislature intended to exclude from the definition of drug paraphernalia any item traditionally used to ingest tobacco. Cigars, like cigarettes, are a traditional means of ingesting tobacco. In fact, cigars are designed and sold specifically for the ingestion of tobacco. This reason alone is sufficient to conclude that the legislature did not intend to include cigars in the definition of drug paraphernalia.

In addition, however, the similarities between cigars and cigarette-rolling papers support a conclusion that cigars should not be included in the definition of drug paraphernalia. As the State points out in its brief, the cigar in this case was likely modified from its original form (there was no evidence presented in the trial court that, other than the addition of cannabis, the cigar was modified) to allow defendant to wrap cannabis in the cigar. When used this way, the cigar acts as nothing more than a large cigarette-rolling paper, and the legislature specifically excluded cigarette-rolling papers from the definition of drug paraphernalia (720 ILCS 600/4(b) (West 2008)).

Although it is certainly true that the cigar in this case was used to ingest cannabis (evidenced by the traces of cannabis found in the cigar), cigarette-rolling papers can also be, and likely often are, used to ingest cannabis. That fact, however, did not prevent their exclusion from the definition of drug paraphernalia under the Act, because they are historically and customarily used for the legal ingestion of tobacco. Likewise, although sometimes used to ingest cannabis, cigars are historically and customarily used for the legal ingestion of tobacco. Accordingly, we hold that cigars are not included in the definition of drug paraphernalia under the Act, and defendant’s conviction of possession of drug paraphernalia must be reversed.