How Past Drug Use Can Become a Current Possession Charge

drugs-various-300x225A couple of articles back, I ranted about cops trumping up charges.  Yes, my outrage can get boring at times, as it seems everyone is outraged over something.  That being said, getting pissed off about something is a fine cure for writers block.  And, in my defense, at least I’m able to give very specific examples of why you taxpayers should be concerned about how the criminal justice system is wasting your hard earned cash.

Before we jump into the case of the day, a bit of background may be helpful. We charge people for possessing drugs, not using drugs.  If a cop finds someone high on cocaine in a night club–they cannot charge them with possession of the cocaine they consumed in order to get high.  Being “high” on drugs is not a crime.  Possessing those drugs is a crime.

In some cases, the line between using a drug and possessing the drug becomes blurred.  This is especially true in drug paraphernalia cases (drug paraphernalia is any “thing” used to ingest or store a drug, like a bong or a heroin needle, etc.).  In Holloman v. State, the defendant was convicted of possession of cocaine, and he didn’t even know he had any cocaine on him.  2017 Fla. App. LEXIS 2061 (Fla. 4th DCA 2017).  Holloman was arrested with a brass fitting in his pocket, and this brass fitting had a copper mesh that facilitated the smoking of cocaine.  It was a pipe, of sorts.

Once the officer realized what this brass fitting was used for, the officer decided to spend taxpayer dollars to have a forensic chemist examine the pipe.  The results shocked no one–the brass fitting had burnt cocaine residue on it.  This trace amount of cocaine weighed in at less than .01 grams.  The amount was so small that the defense attorney moved to dismiss the felony possession of cocaine charge because the State never proved that Holloman had any knowledge the pipe still had cocaine on it (otherwise, he would have hit the pipe one more time, right?).  The jury convicted Holloman of possession of cocaine.

Did Holloman know he had cocaine on him that day?  I doubt it.  Judging from the trace amount present–an amount that took a forensic chemist to uncover–Holloman probably presumed that he had already smoked all of the cocaine.

What happened to Holloman in this case could happen to anyone using various devices to ingest drugs–the State could hire a forensic chemist to detect even the slightest trace of cocaine/heroin/oxycodone/weed/MDMA.  These chemists could transform every possession of drug paraphernalia case into a “possession of XYZ drug,” just by detecting the slightest trace of an illegal substance.

The appellate court did acknowledge that “the ordinary presumption that one has knowledge of drugs found in his possession may not apply when there are only trace amounts of drug ‘lint’ or ‘dust.'”. citing Jones v. State, 589 So. 2d 1001, 1002 (Fla. 3d DCA 1991).  Unfortunately, the ‘lint’ or ‘dust’ exception does not apply when the illegal drug is “found on an implement which is usable only for the obviously knowing use of the drug.” Id.  And, that’s how the appellate court upheld Holloman’s possession of cocaine conviction, “the cocaine was found on a brass fitting in [Holloman’s] pocket.  Because [Holloman] had exclusive possession of the object, knowledge of the presence of cocaine was presumed.  This presumption applied even though the cocaine was present in only trace amount.” Holloman at 3.

Unfortunately, the appellate court got this one wrong.

The issue here is not knowledge.

The issue here is dominion and control.  There are three parts to a possession charge, knowledge, dominion, and control.   A felony drug possession charge based upon residue lacks any proof of dominion and control.  By this logic, I am currently possessing cocaine via the dollar bills in my wallet.  It is common knowledge that all US Currency contains trace amounts of cocaine on it.  Cocaine is on my cash because cash is often rolled up in order to snort cocaine.  However, this possession charge would get nowhere because I cannot access the cocaine on my cash.  I can no longer snort the cocaine off my cash.  In other words, I have no dominion and control over the cocaine residue on US Currency.

Sure, the State may still charge me with cocaine possession, because I have knowledge of the cocaine on my cash.  And, a laboratory can detect it.  And, a forensic chemist can tell the jury what’s on my currency.  And, I have knowledge of the cocaine on my US Currency.  But, I don’t have dominion or control over these microscopic trace elements of cocaine.  Without dominion and control over the coke on my cash, there’s no way I should be convicted of possession.  By the same logic, there was no cocaine left for Holloman to smoke.  If there’s nothing left to smoke, how can the state prove Holloman had dominion or control? [for an interesting case where the defendant actually possessed the cocaine but didn’t have dominion and control because his friend owned the coke, see Hamilton v. State, 732 So. 2d 493 (Fla. 2nd DCA 1999)]

The Holloman case sets a dangerous precedent, permitting all drug paraphernalia case to become felony possession charges merely by having the prosecutor spend tax payer money on a scientist.

Side Bar: Its too bad that the state doesn’t have to prove the “knowledge” element when a defendant has actual possession of a drug in the form of residue (like the drugs on your dollar bills, or in this case, Holloman’s brass fitting/crack smoking device).  When it comes to residue, most people don’t realize they’re possessing something illegal.  But, “knowledge” is not an element the prosecutor needs to prove, and we defense attorneys are left with an affirmative defense  that places the burden on the defendant to demonstrate his lack of knowledge.   This wasn’t always the case, back in 2011 the legislature amended the drug possession laws (Section 893.01) to hold that “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.  Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense”. id. See State v. Adkins, 96 So. 3d 412 (Fla. 2012).