“How can they charge me with possession for such a small amount?” This is another question that comes up quite often when handling drug cases. Possession charges can come about when a small amount of drugs, or residue of drugs is found. In some cases, a single marijuana “roach” (butts of a marijuana cigarette, often too small to be smoked any further), or a few “roaches” are found as part of a vehicle search. Similarly, leftover residue of burnt marijuana or other drugs, inside a pipe, is sometimes used to bring this charge.
Typically, the first question anyone who is facing such a charge asks is “isn’t there some minimum amount” needed to charge a person with Possession?
The short answer is yes, but just enough to test. This means that even the smallest amount of drugs can create legal troubles.
Moreover, charging someone with Possession requires a lot less evidence than convicting someone of that charge. The often asked question, “how can they charge me with Possession?” can be answered rather simply: They can because they did.
Of course, there are scenarios where the mere presence of residue is not enough to sustain a Possession charge. For example, it is widely known that paper currency often carries small, or trace amount of drugs (especially cocaine) both because of the use of rolled up bills to snort the drugs, and because money and drugs are often in the same area. What’s more, as money that has drug residue is folded up or grouped with other money that does not, some of the “clean” money will pick up some of that residue.
Thus, a trace amount of drugs on money found on a person, without more, is not enough to bring a Possession charge.
But a folded up rectangle of paper that was used to hold cocaine, or heroin, or a baggie with drug residue left inside is another story.
Similarly, the Prosecutor has to show that a person “knowingly” or “intentionally” possessed the drugs. Thus, if the “roaches” are in the ashtray of your brother-in-law’s car, which you were borrowing, the charge may not stand up. If, on the other hand, the “roaches” are in the ashtray of your car, and you just forget to dump them out, then a Possession charge will probably stick.
Possession of Controlled Substances like cocaine and heroin is prohibited by a law that makes it a crime to possess any amount. Thus, the lowest possession charge a person can face is “Possession of Less Than 25 Grams.” The next level up covers Possession of 25 up to less than 50 grams. A person possessing even 1/20th of a gram would therefore be a person who possesses less than 25 grams. There is no minimum amount necessary to be found “in possession.”
Marijuana cases are decided the same way. That little roach in the ashtray is indeed enough to sustain a charge, and conviction for Possession of Marijuana.
One of the more interesting twists on all this occurs when a person is charged with “Possession of Narcotics Paraphernalia.” Let’s use an example where someone is found with a marijuana pipe on their person.
Under Michigan’s drug laws, a person with no prior drug convictions is eligible to work out a deal, known as a “7411” (see the sub-sections “Possession of Controlled Substances and Possession of Analogues,” as well as “Possession of Marijuana” in the “Criminal Cases” section of my main website for a more detailed explanation of how this works) which allows them to keep a Drug Possession conviction off of their record if they complete a probationary term. Possession of Narcotics Paraphernalia charges cannot be handled this way. That means that even with no prior record, a person facing this charge who has no way out of it will “eat” the conviction and have it placed upon their record.
In our example, a skillful attorney will negotiate with the prosecutor to amend, or change the charge from Possession of Narcotics Paraphernalia to Possession of Marijuana so that the whole thing can be kept off the client’s record using that “7411.” In the vast majority of Paraphernalia cases, there is enough residue in the object, burnt or otherwise, to tell what drug had been used in it. The Defense attorney then has to convince the Prosecutor to allow this amendment because there is, in fact, enough residue, were it to be removed and tested, to at least sustain a charge of Possession of whatever drug the Paraphernalia was being used for. In a strange way, by essentially pleading the client “up” in charges, the lawyer is pleading them “out” of a conviction.
It goes without saying that each case is unique. Sometimes, the toughest looking cases can be the easiest to beat, and other times, the case that looks like it might fall apart on it’s own has enough evidence to keep it going.
To answer the often asked question, though, “Isn’t there some minimum amount they need to charge me with Possession?” the answer is clear: There must be enough of the drug to test and show what it is. No more is necessary.