Simple Possession of a Controlled Substance

In Southern California Federal Courts, the United States Central District of California, prosecutors will often charge defendants with violations of 21 U.S.C. § 844, commonly referred to as simple possession of controlled substances. Anyone in possession of a controlled substance can be charged with this crime and it can be charged as either a misdemeanor or a felony.

The prosecution needs to prove that someone knowingly or intentionally possesses a controlled substance without a valid prescription. This is a charge used when someone possesses drugs for personal use. It’s important to note that possession does not necessarily only refer to having drugs on one’s own person – Prosecutors can charge someone with Simple Possession when they have drugs somewhere they have control over them, like in a car or in their home.

The prosecution doesn’t need to prove the amount or quantity of the controlled substance, it only needs to prove that there was a trace, measurable or detectable amount. This is a very low bar. However, there actually are some exceptions to this rule. In the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit court which covers the State of California has held that where the quantity of drugs is so large that it would increase the penalties for possession, a jury would need to determine whether the defendant actually had that specific amount of drugs. It also does not matter if the defendant knew the substance was a specific controlled substance, as long as they know it was a controlled substance. Meaning that the prosecution doesn’t need to prove you know that you have methamphetamine, only that you know you are not allowed to possess that substance.

Assume someone stopped for a routine traffic infraction. Officers approach the vehicle and see through the window that there are large bags of an off-white, crystalline substance. Based on this, they search the car and find a large amount of cash, a digital scale, empty plastic bags, and they test and discover that the substance they found is methamphetamine. Based on all of the above, they could charge someone with Possession with Intent to Distribute because the scales, money, and large amount of drugs suggest that the substances were held for sales as opposed to personal use.

However, in the same scenario, if someone is pulled over and searched but the officers only find a small amount of cocaine in a baggie in the center-console, it is unlikely they could be convicted of Possession with Intent to Distribute because there are no ‘indicia of sales’, in other words, items that would indicate the person possessed the methamphetamine to sell it. In all likelihood,, this would be a situation where prosecutors may choose to charge someone with Simple Possession of a Controlled Substance instead.

The most important element of the charge is that the defendant knowingly possessed the substance in question. If, in the above scenario, the person found with cocaine recently rented or borrowed the car they were driving and the last person to drive it left their drugs in the car, that could be a defense because the person honestly did not know about the existence of the drugs.

Also, it’s important to confirm that the search that resulted in discovery of the drugs was conducted lawfully. A good attorney is crucial in dealing with unlawful search and seizures. The evidence of the search could be kept out of court because evidence obtained in violation of a defendant’s constitutional rights is tainted. Tainted evidence is inadmissible as fruit of the poisonous tree. If the police conducted an unconstitutional search, that could be a valid defense to the charge of Simple Possession.

A Mistake of Fact defense would apply to situations in which a defendant that the substance they possessed was not a controlled substance, even if this belief was mistaken. Prosecutors need to prove that the Defendant actually knows the substance is a controlled substance (or analogue to a controlled substance) to convict. If they cannot prove that, someone who possesses what they believe is a bag of baking flour could not be convicted even if the substance is later found to be cocaine.

Related offenses include:

• 21 U.S.C. § 841(a)(1) – Possession with Intent to Distribute
• 21 USC § 848 – Continuing Criminal Enterprise - “Drug Kingpin Statute”
• California Health and Safety Code Section 11350, Possession of Methamphetamine
• California Health and Safety Code Section 11350, Possession of Cocaine
• California Health and Safety Code Section 11350, Possession of Heroin

A first-time conviction of violating federal law for simple possession of narcotics carries a sentence of up to one year in Federal Prison, and/or a minimum fine of $1,000. A second-time conviction of simple drug possession could be a felony, and carries a sentence of fifteen days to two years in prison and a minimum fine of $2,500. A third or successive conviction of simple possession of controlled substances can also be a felony and carries a sentence of ninety days to three years in prison and a minimum fine of $5,000.

Simple Possession of a Controlled Substance is a serious offense. Federal law in this area can be much more severe than California law. If you or a loved one have been arrested for or charged with Possession of a controlled substance, it is critical that you discuss your case with a knowledgeable federal criminal defense lawyer as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Michael Kraut understands how to effectively defend clients charged with drug offenses and works hard to ensure his clients receive the best defense possible.

For more information about Federal Drug charges, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.