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88.4 Drugs, Controlled Substances: Simple Possession     

    88.4.3.1 Drugs, Controlled Substances: Simple Possession--Possession Issues
    88.4.3.2 Drugs, Controlled Substances: Momentary, Innocent, Or Unwitting Possession
    88.4.3.3 Drugs, Controlled Substances: Possession--Intoxication Or Mental Impairment As Defense To Knowledge Element
    88.4.3.4 Drugs, Controlled Substances: Agreement Or Contract To Purchase: Not Possession
    88.4.3.5 Drugs, Controlled Substances: Prescription For Drugs Not Sufficient To Show Possession
    88.4.3.6 Possession Of Drugs, Controlled Substances: No Conviction When Unclear Which Substance Was Possessed
    88.4.3.7 Possession Of Drugs, Controlled Substances: Ingestion/Use Alone Not Sufficient To Prove Possession
    88.4.3.8 Possession Of Drugs, Controlled Substances: Under The Influence Not Sufficient
    88.4.3.9 Possession Of Drugs, Controlled Substances: Less Than Usable Quantity As Defense Theory
    88.4.3.10 Drugs, Controlled Substances: Defendant Permitted To Comment On Lack Of Fingerprint Evidence As Defense Theory
    88.4.3.11 Possession Of Drugs, Controlled Substances: Defense Theory Of Juror Unanimity As To Individual Units Of Contraband
    88.4.3.12 Possession Of Drugs, Controlled Substances: Challenge To Multiple Charges Based On A Single Incident
    88.4.3.13 Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute
    88.4.3.14 Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged
    88.4.3.15 Simple Possession: Additional Defenses And Defense Theories

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    See generally FORECITE National™ Chapter 56 [Possession].

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    88.4.3.2    Drugs, Controlled Substances: Momentary, Innocent, Or Unwitting Possession

     See FORECITE National™ 56.3.4.1 [Unwitting Possession As Defense Theory].

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    88.4.3.3    Drugs, Controlled Substances:  Possession -- Intoxication Or Mental Impairment As Defense To Knowledge Element       

    See FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

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    See FORECITE National™ 56.2.11 [Possession: Agreement Or Contract To Purchase Not Sufficient].

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    88.4.3.5    Drugs, Controlled Substances: Prescription For Drugs Not Sufficient To Show Possession

RATIONALE: Without an explanatory instruction the jury may improperly assume that possession of a prescription is tantamount to possession of the drugs themselves.

POINTS AND AUTHORITIES: "In the absence of [evidence that] a pharmacist is under a duty to fill every prescription presented to him, a prescription cannot be said to serve as a key to the pharmacist’s drug chest. A prescription is a direction to a pharmacist for the preparation and administration of medicine; it is not a form of commercial paper transferring to its holder some right or title to a quantity of medicine. Instead, it permits the pharmacist to dispense, and its holder to obtain, certain controlled medications. Because a prescription by itself does not entitle its holder to unconditional access to the drugs prescribed, a prescription is not tantamount to possession." (U.S. v. Walker (6th Cir. 1992) 972 F2d 679, 681.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It may be permissible to obtain multiple convictions for possession of different controlled substances prohibited by different statutes. (See FORECITE National™ 274.4.1 [Whether Multiple Possessions May Result In Multiple Convictions].) However, when it is unclear which of the two substances were possessed, even a single conviction may not be possible. (See State v. Simpson (MD 1989) 567 A2d 132, 133 ["[T]he identification of the particular controlled substance...is so inextricably tied to the critical matters of the appropriate unit of prosecution and the permissible or mandated punishment that it must be treated as an element of the offense"].)

    See also FORECITE National™ 273.10.11.3 [Jury Unanimity: Alternative Varieties Of Contraband].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without an explanatory instruction the jury may improperly assume that the defendant's ingestion or use of the drug is the equivalent of possessing it.

POINTS AND AUTHORITIES: "Mere evidence of use of a proscribed substance cannot circumstantially prove its 'possession.'" (People v. Spann (CA 1986) 187 CA3d 400, 408 [232 CR 31]; see also State v. Lewis (MN 1986) 394 NW2d 212, 217 [unlawful possession of controlled substance does not include the presence of a substance within a person’s body without other evidence]; State v. Downes (OR 1977) 572 P2d 1328, 1330; State v. Rudd (WA 1993) 856 P2d 699, 700; but see U.S. v. McAfee (10th Cir. 1993) 998 F2d 835, 837 ["a controlled substance in a person's body is in the possession of that person"].)

    The definition of possession normally applies to possession "on" not "in" the person. Accordingly, in a prosecution for possession of a controlled substance, the only relevance of a positive drug test as circumstantial evidence that the defendant possessed the drug at the time of the ingestion. (See e.g., State v. McCoy (NM 1993) 864 P2d 307, 312.)

    However, ingestion of the drug does not preclude conviction for possession where "there exists sufficient direct or circumstantial evidence of past possession, over and above evidence of mere use or ingestion." (People v. Palaschak (CA 1995) 9 C4th 1236, 1241 [40 CR2d 722].)

    See also FORECITE National™ 88.4.3.8 [Possession Of Drugs, Controlled Substances: Under The Influence Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without an explanatory instruction the jury may improperly assume that because the defendant was under the influence of the drug he necessarily possessed it.

POINTS AND AUTHORITIES: "Mere evidence of use of a proscribed substance cannot circumstantially prove its 'possession.'’" (People v. Spann (CA 1986) 187 CA3d 400, 408 [232 CR 31]; see also State v. Lewis (MN 1986) 394 NW2d 212, 217 [unlawful possession of controlled substance does not include the presence of a substance within a person’s body without other evidence].)

    For example, presence of a controlled substance in an accused’s blood is not possession or control of the substance, "nor is it adequate circumstantial evidence to show prior possession by that person." (State v. Flinchpaugh (KS 1983) 659 P2d 208; but see U.S. v. McAfee (10th Cir. 1993) 998 F2d 835, 837 [use is a form of possession].)

    See also FORECITE National™ 88.4.3.7 Possession Of Drugs, Controlled Substances: Ingestion/Use Alone Not Sufficient To Prove Possession].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.4.3.9    Possession Of Drugs, Controlled Substances: Less Than Usable Quantity As Defense Theory

PRACTICE NOTE: The presence of a "useable quantity" of the drug or controlled substance may be an element of possession and possession for sale of a controlled substance. (See e.g., State v. Murphy (AZ 1977) 570 P2d 1070, 1075; State v. Bluhm (MN 1990) 457 NW2d 256, 258; People v. Rushing (CA 1989) 209 CA3d 618, 621 [257 CR 286]; People v. Leal (CA 1966) 64 C2d 504, 511-12 [50 CR 777]; U.S. v. Bert (9th Cir. 2002) 292 F3d 649 [defendant is liable for a minimum sentence for possessing cocaine base of "detectable amount" (21 USC 841); but see State v. Espinosa (AZ 1966) 421 P2d 322, 324 [usable quantity requirement inapplicable to offer to sell].)

    However, in People v. Rubacalba (CA 1993) 6 C4th 62, 64-67 [23 CR2d 628], the court held that the usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. No particular purity or narcotic effect need be proven. (Ibid.; see also State v. Baker (MO 1995) 912 SW2d 541, 546 [possession of a crack pipe containing burnt cocaine residue detectable through lab analysis but too small to measure will not sustain a conviction for possession of cocaine. Only a measurable quantity of a drug can sustain a conviction for possession. The residue present on the pipe indicates only that it had been used to smoke cocaine in the past and the most the defendant may be found guilty of is possession of drug paraphernalia].)

    The Rubacalba court did note, however, that the concentration of the substance might in some situations be relevant to the element of knowledge. (Rubacalba, 6 C4th at 66.)    

    See also FORECITE National™ 88.3.2.4 [Quantity: Lack Of Knowledge As Defense Theory].

Annotation, Minimum Quantity Of Drug Required To Support Claim That Defendant Is Guilty Of Criminal "Possession" Of Drug Under State Law, 4 ALR5th 1.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.89.

See also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 20.19 [Controlled Substance Crime in the 3rd Degree - Possession -- Elements] p. 157 (West, 4th ed. 1999)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It is axiomatic that reasonable doubt may arise from a lack of evidence. (See FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].) Thus, a defense theory may be based on the absence of fingerprints. As held by the court in U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, the court held that a defendant is entitled to argue that the government's failure to present certain types of evidence (e.g., fingerprints) weakens its case. For example, when the defense is lack of knowledge or possession, the lack of fingerprint evidence is a relevant fact which may be elicited by defense counsel during direct or cross examination of witnesses, and incorporated into counsel's closing argument. (Ibid.)

    Similarly, in U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354, 360, the 6th Circuit reversed a conviction based on the trial court’s failure to allow defense counsel to comment on the lack of fingerprint evidence. The court held, "In every criminal case, the mosaic of evidence that comprises the record before a jury includes both the evidence and the lack of evidence on material matters."

    While the right to an instruction on this point was not at issue in Thompson, counsel may wish to consider offering a pinpoint instruction when the lack of fingerprint evidence relates to a theory of the defense. (See generally FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].)

    See FORECITE National™ 270.7.1.1 [Does "Firmly Convinced" Language Better Focus The Jury On The Lack Of Evidence?].

CAVEAT: It has been held that expert testimony in support of the prosecution regarding the absence of fingerprint evidence may be admitted in rebuttal to evidence that the only identifiable fingerprints did not match the defendant's. (See U.S. v. Burdeau (9th Cir. 1999) 168 F3d 352, 356-57.)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.4.3.11    Possession Of Drugs, Controlled Substances: Defense Theory Of Juror Unanimity As To Individual Units Of Contraband

PRACTICE NOTE: In a prosecution for possession or possession for sale of a controlled substance, an instruction upon juror unanimity is required where the possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space. (See FORECITE National™   88.6.3.1 [Possession: Defense Theory That Juror Unanimity Is Required As To Individual Units Of Contraband].)

    See also FORECITE National™ 273.10.11.1 [Jury Unanimity: Multiple Units Of Contraband].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See also generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.4.3.12    Possession Of Drugs, Controlled Substances: Challenge To Multiple Charges Based On A Single Incident

PRACTICE NOTE: A defendant’s simultaneous possession of, and intent to distribute, drugs found in his car and in his home have been held to be a single offense of possession where there is one "unifying intent to distribute" the drugs. (See Williams v. State (DE 2002) 796 A2d 1281, 1284.) Separate convictions for possession of drugs in the accused’s car and home pursuant to a single intent are improper under double jeopardy principles. (Ibid; see also Rashad v. Burt (6th Cir. 1997) 108 F3d 677, 681 [whether possession of multiple caches of drugs constitutes more than one offense depends on whether the possessions "are sufficiently differentiated by time, location or intended purpose"].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: Knowledge that the substance is a drug is an element of most drug offenses. Hence, it may be a defense that the defendant believed the substance possessed was some substance other than those prohibited by the statute.

POINTS AND AUTHORITIES: Since ignorance of the law is normally not a defense, it probably would not be a valid defense theory that the defendant did not believe the substance was proscribed by the statute (e.g., the defendant didn't know heroin was a controlled or illegal substance.) Similarly, when the defendant is charged with possession, sale, transportation, etc. of a drug or controlled substance under a statute that includes more than one different controlled substance, the knowledge element does not normally extend to the specific type of controlled substance. Thus, if both heroin and cocaine are proscribed by the same statutory provision, it would not be a valid defense theory that the defendant believed it to be heroin when it really was cocaine. (See Johnson v. State (FL 1995) 650 So2d 89, 90; see also People v. Romero (CA 1997) 55 CA4th 147, 151 [64 CR2d 16].) However, a defense theory may be available if there is evidence that the defendant believed the substance was not included among those specified in the statute (e.g., defendant believed it was aspirin and it really was heroin). (See People v. Winston (CA 1956) 46 C2d 151, 158 [293 P2d 40]; People v. Gory (CA 1946) 28 C2d 450, 455-56 [170 P2d 433].).

    Hence, the jury should be instructed that the defendant must have knowledge that the substance is one of those made illicit by the statute. (Ibid.; Winston, 46 C2d at 158; see also Chicone v. State (FL 1996) 684 So2d 736, 745-46 [error to deny special jury instruction on knowledge of the illicit nature of the items possessed]; People v. Castro (IL 1971) 274 NE2d 839, 841; State v. Christel (WI 1973) 211 NW2d 801, 808-09.)

    See also FORECITE National™ 252.8 [Mistake Of Fact].

WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1021 [First Degree Reckless Homicide] comment p. 4 (University of Wisconsin Law School, 2000)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

    The defendant's mistaken belief that the substance [allegedly] possessed was not [one of] the controlled substances specified in the statute negates the knowledge necessary to convict [him] [her] of __________. The prosecution must prove beyond a reasonable doubt that the necessary knowledge was not negated by the defendant's mistaken belief.

    If you have a reasonable doubt whether the prosecution has met this burden you must find that the necessary knowledge was not proven and find the defendant not guilty.

[Source: FORECITE National™.]

    The prosecution must prove that the defendant knew that the substance was _____________________ (insert name of controlled substance). If you have a reasonable doubt whether the defendant knew that the substance was __________________, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

    If, after considering the evidence of mistake together with all the other evidence, you have a reasonable doubt whether the defendant knew the substance was _______________ (insert name of substance), you must give the defendant the benefit of that doubt and vote to find (him/her) not guilty.

[See generally People v. Romero (CA 1997) 55 CA4th 147, 151 [64 CR2d 16]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden of Proving Identity Based Solely on Eyewitness] (West, 6th Ed. 1996).]

    The prosecution has the burden of proving beyond a reasonable doubt that the defendant knew (he/she) possessed the substance and knew the substance was _________________ <insert name of controlled substance allegedly possessed>. If, after consideration of all the evidence, you have a reasonable doubt as to whether the prosecution has met this burden, you must vote to find the defendant not guilty.

[Cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5120 [Ignorance Or Mistake Of Fact] p. 619 (Lexis, 1998); see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES [Drug Abuse, Sale, Purchase, Manufacture, Delivery or Possession With Intent] (Florida Bar, 1987; July 1997 supp.), p. 291 ¶ 9; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1021 [First Degree Reckless Homicide [Based On Supplying Controlled Substance]] 1/98, p. 2, ¶ 10 (University of Wisconsin Law School, 2000); ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 14.11, note [Definition Of Possession Of Burglary Tools] (West, 4th ed. 2000).]

    The prosecution must prove beyond a reasonable doubt that the defendant had knowledge of the illicit nature of the substance allegedly possessed.

[See Chicone v. State (FL 1996) 684 So2d 736, 745-46.]

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RATIONALE: When the charging document is limited to a single drug or substance, the prosecution must prove knowledge as to that substance. Hence, when appropriate, special instruction may be appropriate to assure the jury understands that unless possession of the charged substance is proven the defendant must not be convicted even if he or she possessed some other controlled substance or illegal drugs.

POINTS AND AUTHORITIES: Despite the general view that knowledge of the illicit nature of the substance is sufficient (see FORECITE National™ 88.4.3.13 [Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute]), if the statute under which the defendant is charged only proscribes one kind of substance, or if the charging document specifies a particular substance, then it may be a valid defense theory that the defendant must have knowledge that he or she possessed that particular substance. (See Johnson v. State (FL 1995) 650 So2d 89, 90 [reversible error to refuse defense instruction that prosecution must prove defendant knew he possessed cocaine].)

    A similar requirement may also apply when a particular drug or controlled substance is specified in the charging document or the instructions on the elements of the offense. (See e.g., State v. Ong (WA 1997) 945 P2d 749, 752 [discussing the issue]; see also FORECITE National™ 300.2 [Due Process: Notice].)

    See also FORECITE National™ 88.4.3.13 [Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

    The State must prove beyond and to the exclusion of every reasonable doubt that at the time of the transaction that the defendant knew the substance was cocaine.

[Johnson v. State (FL 1995) 650 So2d 89, 90.]

    The prosecution has the burden of proving beyond a reasonable doubt that the defendant knew (he/she) possessed the substance and knew the substance was _________________ <insert name of controlled substance allegedly possessed>. If, after consideration of all the evidence, you have a reasonable doubt as to whether the prosecution has met this burden, you must find the defendant not guilty.

[Cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5120 [Ignorance Or Mistake Of Fact] p. 619 (Lexis, 1998); see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES [Drug Abuse, Sale, Purchase, Manufacture, Delivery or Possession With Intent] (Florida Bar, 1987; July 1997 supp.), p. 291 ¶ 9; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1021 [First Degree Reckless Homicide [Based On Supplying Controlled Substance]] 1/98, p. 2, ¶ 10 (University of Wisconsin Law School, 2000); ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 14.11, note [Definition Of Possession Of Burglary Tools] (West, 4th ed. 2000).]

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].