The Crime of Drug Possession: Its Not What You Think It Is

The government engineered a drug bust where Defendant Kitchen was scheduled to purchase two kilograms of cocaine from federal agents. Kitchen got into the vehicle of the undercover federal agents and picked up the kilograms of cocaine and held them for a couple of seconds. He inspected the substance and made a comment on its purity. At that point, federal agents arrested him. Kitchen was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C.A. 841(a)(1).
Drug Law 21 U.S.C.A. 841
(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance;
In United States v Kitchen, the Court found that there was insufficient evidence to prove the possession element of the crime because the defendant never took affirmative steps to exert dominion and control over the cocaine. To justify a conviction for a possession charge brought pursuant to 21 U.S.C.A. 841, the government must present evidence that the defendant knowingly possessed the controlled substance; that is, that the defendant knowingly exercised dominion and control, actual or constructive, and individually or jointly over the substance. 57 F.3d 516 (7th Cir. 1995). Mere physical proximity or association with someone who does the drugs is not enough to establish possession.
Actual Drug Possession
In order to sustain a conviction under 21 U.S.C.A 841(a)(1), the government must show that (1) the defendant knowingly or intentionally possessed a controlled substance, (2) he possessed the controlled substance with the intent to manufacture, distribute, or dispense it and (3) he knew that the material was a controlled substance.
In Kitchen, the Court held that there was insufficient evidence for actual possession because nothing on the record proved that the defendants momentary holding of the cocaine constituted possession of the drugs. No transaction had occurred and the defendant had not assented to the sale. Instead, the defendants holding was in the context of inspection and not delivery.
The particulars of a given drug transaction determine conduct and possession. However, in prior cases where actual possession has been proven, there is clear assent demonstrated by the defendants to the drug transaction and the defendants have engaged in some act that was consistent with transporting the narcotics away from the scene of the sale. In United States v Toro, the defendant took the cocaine from the government agent and put it in a briefcase. 840 F.2d 1221, 1238 (5th Cir. 1988). In United States v Jones, the defendant loaded bales of marijuana into his van. 676 F.2d 327, 332 (8th Cir). In each case, the defendants handling of a controlled substance allowed each defendant to exercise dominion and control over the substance.
Under 21 U.S.C.A 841, physical dominion or control over a controlled substance is not the only proof of possession. Constructive possession also constitutes the offense of possession.
Constructive Possession of a Drug
Constructive possession is the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance. Constructive possession may also be shared with others. Possession of large amount of marijuana among several people working together may be sufficient to show that each has constructive possession. United States v. Watkins(1981, CA4 SC) 662 F2d 1090. In Watkins, the Court found that a judge or jury could reasonably believe that the defendant transported 23,000 pounds of marijuana in a boat although the 23,000 pounds of marijuana was never witnessed on the boat but found on a tractor-trailer instead. The Court found that at some stage of the transaction, each defendant had the power to exercise dominion and control over the marijuana and the totality of the evidence established a continuous, single operation.
In Kitchen, although the defendant held the cocaine in his hands for a couple of seconds, he did not have a recognized authority to exert control over it. No money had been exchanged when the defendant held the cocaine in his hands. Thus, the Court found that there was insufficient evidence to prove that the defendant had constructive possession over the cocaine. The defendant did not have the knowing exercise of, or the knowing power or right to exercise, dominion and control over the cocaine.
Whereas 21 U.S.C.A. Section 841 deals with possession of controlled substances with the intent to distribute, dispense or manufacture, Section 844 deals with simple possession.
Drug Law 21 U.S.C.A. 844
This section provides in part: (a) It shall be 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 title
Under 21 U.S.C.A. 844(a), a defendant can be convicted for simple possession even if the defendant is found in possession of a small amount of the drug even if it cannot be used for its common purposes. In United States v Harold, the defendants car was seized and searched, and several marijuana seeds and .289 grams of marijuana were found in various places of the car. The Court held that, although only a small amount of marijuana was found, it is well-established under federal law that a conviction for possession will be upheld where any measurable amount of any controlled substance is found. 588 F.2d 1136 (1979, CA5 Fla.).
Under 21 U.S.C.A. 844(a), quantity is not an element of simple possession but determines penalty provisions. In United States v Butler, the Court held that possession of cocaine in excess of 5-grams was an element that bumped a misdemeanor up to a felony. 74 F.3d 915 (1996, 9th Circuit, Wash).
Conclusion
As is clear from the discussion in this article, the laws concerning the possession of marijuana, controlled substances and the like is, indeed, quite complex. The term possession as used in the law does not have the same meaning as when it is used everyday language. Consequently, if one is under investigation, under arrest, or under prosecution for any of the crimes discussed herein, it is imperative to seek counsel from an attorney, who is licensed to practice law in the jurisdiction where the matter is pending, admitted to practice before the federal courts, and experienced in handling these types of cases.