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The
Crime of Possessing Marijuana
Under
federal law and the laws of every state, it is a crime to possess marijuana.
In order to convict a person of possession, most states require that the
prosecution prove three things (known as "elements" of the crime):
1. The act of possession: that the person had physical possession of the
marijuana or dominion and control over it; 2. Knowledge: that the person
had knowledge of the marijuana's presence; 3. Useable amount: that there
was a sufficient amount of marijuana to use as a controlled substance.
If the prosecution fails to prove even one of these elements, the correct
verdict is not guilty of possessing marijuana.
A
jury deciding a marijuana case is informed of the above elements and told
that it can only convict the defendant of possessing marijuana if it finds
that each element was proved beyond a reasonable doubt. After all the
evidence in the case has been presented, the jury is informed of the three
elements by the judge who instructs them on the law. A typical jury instruction
read to a jury in a marijuana-possession case states: The defendant is
accused of having committed the crime of illegal possession of a controlled
substance, in violation of the Health and Safety Code.
Every
person who possesses a controlled substance, namely, marijuana, is guilty
of the crime of illegal possession of a controlled substance. In order
to prove such crime, each of the following elements must be proved:
(1)
The defendant exercised control or the right to control marijuana,
(2)
The defendant had knowledge of its presence,
(3)
The defendant had knowledge of its nature as a controlled substance, and
(4)
The substance was in an amount sufficient to be used as a controlled substance.
The
prosecution must prove the element of possession. The prosecution can
prove this element two different ways. The prosecutor can try to show
that the defendant had actual physical possession of the marijuana;
for example, holding a joint in his hands, lips, or pocket. However, if
the prosecutor is unable to prove that the person actually held the marijuana,
he will try to prove the possession element by showing that the marijuana
was within the person's "dominion and control." This is known
as constructive possession and is often established by showing
that the marijuana was found in an area or container that was under the
defendant's control, for example, in the person's house, car, or backpack.
The California jury instruction regarding these two types of "possession"
states:
Actual
possession requires that a person knowingly exercise direct physical control
over a thing.
Constructive
possession does not require actual possession but does require that a
person knowingly exercise control or the right to control a thing, either
directly or through another person or persons.
In
one case in Texas , police discovered marijuana in two locked chests inside
a vehicle' s trunk. A man who neither owned the vehicle nor had ever driven
it was convicted of possessing the marijuana! The court held that the
man was guilty of possessing the marijuana because he was found with keys
that unlocked the vehicle's trunk and the two chests containing the marijuana.
According to the court, these keys gave him "dominion and control"
over the marijuana in question.
The
theory of constructive possession is often used in cases where marijuana
found in a publ ic place. These cases are very difficult for the prosecution
to win. he courts of all states have ruled that a person's mere proximity
to marijuana und in public is insufficient to convict the person of possessing
the marijuana, le following scenario illustrates this rule in operation.
Two officers were assigned to handle drug detail at a local concert. Both
'ficers were in uniform and simply walked among the concert-goers looking
for ;ople smoking pot, and hoping that their uniformed presence would
deter people om smoking. As the officers walked down an aisle, the first
officer observed a iggie of "green vegetable matter" on the
ground near the feet of Marley, an ghteen-year-old concert-goer, wearing
a Grateful Dead shirt. The officer rabbed the baggie and by its aroma
tentatively identified it as containing mrijuana. The officers arrested
Marley, who was seated directly above the aggie.
Marley's lawyer argued that there was insufficient evidence to convict
larley of possessing the marijuana since, other than the fact that Marley
was the erson closest to the marijuana, there was no evidence that Marley
had "dominion nd control" over it. Marley denied that the marijuana
was his.
The court that heard Marley' s case agreed that Marley could not be convicted
without more evidence linking him to the marijuana. The court explained
that the rucial fact was that the marijuana was found on public property
and could have een dropped by any one of the 6,000 concert fans. Because
the officers didn't see /larley smoking marijuana, actually holding the
baggie, or tossing it to the ;round, there was no proof that he had dominion
and control over the marijuana. Consequently, the evidence was insufficient
to convict him of possessing the narijuana.
In addition to proving that the defendant possessed the marijuana (actually
>r constructively), the prosecutor must prove that the person had knowledge
that he item he or she possessed was marijuana or some other unlawful
substance. Since the government has not yet figured out a way to tap into
people's thoughts, t is often unable to prove actual kowledge. Therefore,
the knowledge element is generally proved circumstantially. This means
the prosecutor will try to prove, )ased on the person's behavior before
or after arrest, that the person knew the substance was marijuana. Often,
for example, the prosecutor will show that the lefendant tried to hide
the marijuana, or gave evasive answers when questioned )y the police officer.
Almost anything indicating that the person knew he or she possessed marijuana
as opposed to an innocuous substance can be used to prove the knowledge
element. Moreover, most juries require very little proof of knowledge.
The reality is that when police officers catch a person in possession
of marijuana, most jurors find it very hard to believe that the person
didn't know what the substance was.
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