Controlled Substances # 1: Teaching Drug Possession

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

Drug laws raise a range of policy questions that are likely to have obvious appeal to anyone interested in the criminal justice system. From marijuana legalization to the role of race in the enforcement of drug laws, a course on Controlled Substances offers a lot of interesting issues to consider and debate.

But what about the drug laws themselves? I think there is a misperception among some criminal law teachers that the law of drug crimes is simple. Nothing could be further from the truth.

Take drug possession. Does possession in the criminal law mean ownership or something else? During alcohol prohibition, most courts equated possession with something close to ownership and overturned the convictions of defendants who had only temporarily held alcohol in their hands to drink it. As one Judge explained: “Possession of whisky within the meaning of the prohibition law contemplates a control of the whisky, whereas when the whisky is in the main the whisky controls the man.” The same does not seem to be true today for drugs.

In the first possession case in my book, Hawaii v. Hogue, 52 Haw. 660 (1971), the defendant was convicted after taking a marijuana pipe from another person, drawing a couple of puffs from it, and passing it to someone else. In a brief opinion, the majority upholds Hogue’s conviction over a longer dissent that relies heavily on the alcohol prohibition-era precedent. The dissent argues that by criminalizing possession, rather than use, the legislature indicated it “did not intend to prohibit the use of marihuana directly” and so the court “should not indirectly do so by broadly defining possession so as to include the superficial custody required for the immediate inhalation of marihuana.”

The majority does not engage the dissent on this point, which provides a nice opportunity to get students actively thinking about whether this is really true, along with the broader question: What, exactly, do we seek to punish by criminalizing possession? The classroom discussion will highlight the different possible goals we might be trying to achieve by criminalizing drug possession. It will also draw out a very plausible alternative to the dissent’s view: maybe the legislature decided to criminalize possession rather than use because use is typically harder to uncover than possession. If that is the case, there would be nothing incompatible with legislative intent in punishing Hogue.

At the heart of the section on possession is a series of constructive possession cases. Constructive possession is the theory by which a person can be convicted of possessing an item that she does not hold in her hands. If I live alone and the police find drugs in my dresser drawer with my fingerprints on the baggie, constructive possession is easy. Beyond that, however, things can get a little trickier.

What happens if I’m staying in a hotel with a friend and the police come inside and find drugs on the bathroom counter? The case law almost uniformly says this sort of evidence, alone, is not enough to prove beyond a reasonable doubt that either one of us possessed the drugs. To convict me of possession, the government must prove I had the power and intent to exercise dominion and control over the drugs. Proof that I was present in a place with drugs and that I knew they were there isn’t enough.

Courts have struggled to outline exactly what is needed to convict someone in an ambiguous constructive scenario case, however. A furtive movement? Actual possession of a large amount of cash? Actual possession of drug paraphernalia? At what point can a rational jury conclude beyond a reasonable doubt that someone found near drugs is guilty of possession and not just in the wrong place at the wrong time? Trying to find an answer can be a little frustrating at times. Indeed, in 1971, D.C. Circuit Court Judge Tamm remarked that “[t]he more cases one reads on constructive possession, the deeper is he plunged into a thicket of subjectivity.” But, it is also a fun and rewarding intellectual challenge.

In the book, I include constructive possession cases in a few specific settings: vehicles, so-called “open air” drug markets, and go-betweens. These cases provide an excellent opportunity to consider broader criminal law problems, including the distinction between knowledge and intent, the proof beyond a reasonable doubt standard, and the dividing line between the fact finder and the court.

I’ll close this post with a few words about the practical relevance of possession. In 2011, there were 1.25 million arrests for drug possession, more than for any other single crime except larceny at 1.26 million. Possession also comes up in other contexts throughout the criminal law (gun possession, possession of burglar’s tools, etc.). Almost every law student who goes onto practice criminal law will see their share of possession cases—whether it is a border bust or a baggie of drugs under a passenger’s seat. At a time when law schools are rightly concerned about making students more practice ready, I think there is a strong case to be made that possession deserves at least as much attention in our criminal law curriculum as, for example, homicide offenses.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"