The Possession Puzzle
February 19, 2014
“I was riding with my friend in his car! How can I be charged with possession?” “Why was I charged with possession with intent to distribute instead of simple possession?” And the list goes on and on. This week’s post is dedicated to addressing the most common questions I hear about drug possession crimes.
Possession Defined
There are two types of possession-actual and constructive. Oklahoma law defines actual possession as knowingly having direct physical control over a thing at a given time. Oklahoma defines constructive possession as knowingly having the power and the intention at a given time to exercise dominion or control over a thing.
This answers the question of how all four people riding in a car in which there are drugs in the console can be charged with possession. Assuming the four individuals knew the drugs were in the car’s console, it is often inferred that each person had the power and intent to exercise control over the drugs at some given point.
“How can I be charged with possession? There wasn’t any marijuana in the pipe!”
Oklahoma possession law states that possession of any amount of a substance prohibited under the Uniform Controlled Dangerous Substances Act is a crime. This leads to what are commonly referred to as “residue cases,” where law enforcement officers literally scrape the insides of pipes and other paraphernalia to obtain miniscule amounts of a substance. Oklahoma law states that possession of any quantity of a Controlled Dangerous Substance is a crime, and that the amount need not be usable. This makes for some ridiculous cases!
Funny Side Note
As a licensed legal intern (someone with a limited license to practice law under a supervising attorney), my first hearing in a felony proceeding was a preliminary hearing in a possession of methamphetamine case. This was a typical residue case, where the police had scrapped the sides of a baggy found in my client’s purse, and obtained just enough methamphetamine to satisfy their field test. My client, a self-proclaimed meth addict, swore there was nothing in the baggy. So, I decided my best strategy was to argue she could not have possessed the meth found in the baggy because she did not know it was there (possession requires the person know the thing is there). Jokingly, the attorney supervising me suggested I state in my demur that had my client known there was any meth in the baggy, “she would have licked that baggy dry.” I, however, did not know my supervisor was joking, and actually said these words on the record in open court! I would like to think I have come a long way since that hearing…
Possession v. Possession with Intent to Distribute
The difference in whether someone is charged with possession with intent to distribute, as opposed to simple possession, is based on the circumstances in which the drugs were found. In addition to proving the elements of simple possession, the State must prove the person had the specific intent to distribute the illegal substance. The Oklahoma Court of Criminal Appeals has found the sheer quantity of the substance found, the presence of paraphernalia associated with selling narcotics (scales, balances, etc.), and the substance being in individual packaging to be sufficient circumstantial evidence to show one’s intent to distribute. Basically, anything that would tend to show the person did not intend the drugs for personal use can be used in an attempt to prove an intent to distribute. Bottom line-don’t buy drugs, but, if you do, don’t buy in bulk!
Trafficking in Illegal Drugs
Trafficking is the drug possession crime requiring the person charged have a specified quantity of the illegal substance found, not possession with intent to distribute. As with possession with intent to distribute, the State must prove the basic elements of possession. Then, depending on the specific substance found, the State must prove a threshold amount of the substance was possessed. The following are trafficking amounts for the most common narcotics:
- Marijuana = 25 pounds
- Cocaine = 28 grams
- Cocaine base (crack cocaine) = 5 grams (the equivalent of a packet of sugar!)
- Heroin = 10 grams
- Methamphetamine = 20 grams
- Lysergic acid diethylmide (LSD) = 1 gram (less than the equivalent of a packet of sugar!)
- Phencyclidine (PCP) = 20 grams
Possession of Proceeds
I am including Possession of Proceeds Derived from Violation of the Uniform Controlled Dangerous Substances (CDS) Act in this post because of its close relation to possession with intent to distribute. This crime makes illegal to possess proceeds resulting from any violation of the Uniform CDS Act. Typically, this crime is charged when a person is found with large amounts of cash on their person, or in the vicinity of the illegal substance found. Possession of proceeds is aimed at punishing any benefit a person may derive from selling drugs. It is extremely common to see people charged with possession with intent to distribute and possession of proceeds in the same case.
As always, if you have further questions regarding this topic, please post your inquiry and I will do my best to answer it. If you have a suggestion for next week’s topic, let me know!
Drug Crimes , General , Education , Misdemeanor , Trials
