Drug Possession Attorney

Estimated reading time: 12 minutes

Thirty-eight years defending people in possession cases deepens the understanding of Drug Possession Attorney Thomas Gallagher. And now you may be able to benefit from that. So let’s explore criminal possession laws, cases and facts.

Possession Attorney: Prohibition

Arguing a motion to dismiss to a judge requires a thorough legal analysis applied to the facts. When connecting with a jury, justice and fairness become paramount. Either way, we need to dig deep into the meaning of a word in the law, that can either ruin or save you.

Some legal defenses potentially could apply to any criminal accusation. And some defenses are specific to drug possession cases. We’ll discuss those here.

Mere possession is not a crime: Can the government define mere possession of a thing, as a crime? No. We’ve had the affliction of criminal possession laws only within the last 100 years or so. After all, people have safely used these substances for millions of years (marijuana, alcohol, etc.) Yet even now, mere possession is not a crime.

Why? The government must prove more than that, e.g., “knowledge.” And your possession attorney can help stop them.

Identity of prohibited object

Identity of the thing: Minnesota laws make possession of certain contraband a crime – based in part upon the identity of the legally-prohibited thing. Examples include certain drugs, certain artifacts, certain firearms, etc. As a result, the prosecutor must have conclusive evidence identifying a substance as the one prohibited.

Most forms of cannabis are now legal to possess in Minnesota, for example. Legal forms include Epidiolex (marijuana CBD), Drabinol (prescription THC), hemp-CBD, hemp food products, legal medical marijuana. And possession of a small amount of cannabis and cannabis products is not normally a crime.

But plants like cannabis, and khat can still be a crime to possess in Minnesota.

Your possession attorney should know what proof of identity of the substance, looks like.

Prohibited Person: possession attorney

The characteristics of the person can make possession a crime. Some people are more equal than others when it comes to drug possession laws. The same drug may be legal in the hands of one person but a crime in the hands of another. Examples: legal opiates in the hands of a medical doctor. Or, legal marijuana for a cancer patient under a medical marijuana law.

What about someone who discovers contraband and turns it in to police? Guilty?

Location: possession attorney

Possession of the same drug may be legal in one place and illegal in another. For example, alcohol is legal for adults in Minnesota in most places. But it’s illegal if in an open container in a car. And criminal penalties for drug possession may be more severe near a school or park.

Person < relationship > Thing

Criminal possession depends upon the relationship between a person and a thing. The person must be a prohibited person. The thing must be a prohibited thing. If we have both, then in addition the relationship must meet the minimum criteria for criminal possession.

Example: A person is prohibited from knowingly possessing a prescription drug. A prescription drug is located somewhere that person is not. Therefore, since the relationship between the two does not equal knowing possession, the person is not in criminal possession.

What is “criminal possession”?

Whether a person is “in criminal possession” of a thing is an issue in many kinds of criminal cases. These include “controlled substance” possession cases, i.e. marijuana, cocaine, etc. And it can be an issue in criminal cases for possession of other types of contraband, for example some gun crimes. Part of the work of a possession attorney is to explain what is, and what is not, “criminal” possession.

It’s elementary: To understand the criminal law meaning, you must understand the basic “elements” that together define a crime. Every criminal statute breaks down each crime into several “elements,” or parts. If even one element is missing; there is no crime.

The government’s lawyer must first produce legitimate evidence susceptible to an interpretation that could support each and every “element” of the crime. Then the prosecutor must try to convince the fact-finder (jury) that its “evidence” is inconsistent with any inference of innocence.

Three elements to every crime

Though some criminal statutes have more; every crime must include at least three elements:

1. identity;
2. “mens rea;”
3. “actus reus.”

“Mens rea” is Latin for “guilty mind” – guilty knowledge or intent to commit a prohibited act.

“Actus reus” is “the prohibited act.” Before a person can be criminally liable for violating a law, a statute must put the person on fair notice. So, due process requires notice, of just what specific acts the law prohibits and subjects a person to criminal remedies.

The “mens rea” element requires guilty knowledge or intent to do the prohibited act. When we speak of criminal intent, we refer to general intent – intent to do the prohibited act, and depending upon the statute, specific intent to cause a result.

When it comes to crimes of possession, issues of proof of both “mens rea” and “actus reus” are important. Your possession attorney can help show that the government lacks adequate proof.

Prohibited act element

First, is the issue of “actus reus,” or the prohibited act element. Did the accused person actually possess the contraband?

Actual possession: What evidence is there to suggest that the person actually possessed a thing? If an item was found in their pocket, is that evidence of “actual possession?” No doubt the state would argue so. What if police do not find an item on a person, but some distance away?

Constructive possession: If the item was not in the person’s actual possession, prosecutors may argue “constructive possession,” based upon circumstantial evidence. “Constructive” is not “actual.” It is a legal fiction – “a construct” built upon inferences from other, indirect evidence. Your possession attorney can help shine a light on the “constructive possession” house of cards.

Intent element

Next, is “mens rea,” guilty knowledge or intention to do the prohibited act. But what if the prohibited act is the possessing of an item? A person cannot be guilty of a possession crime where she did not know it was there, or what it was. That would be mere possession, or unknowing possession, which is not a crime.

Consider a real world example, “blind mules.” Unsuspecting travelers cross an international border with a package of illegal drugs magnetically attached to their car. The would-be smuggler follows behind the “blind mule” at a safe distance. If police catch the drug mule, the smuggler keeps going undetected.

If police don’t catch the mule, the smuggler later removes the contraband from the unsuspecting mule’s vehicle, who will never know. The smuggler transfers the risk to the blind mule, but keeps a tremendous profit. Film Noir fans can see the 1958 film The Lineup for a cinematic portrayal of this smuggling technique.

Now, is the “blind mule” guilty of criminal possession, even though she had no knowledge of it? The answer is “no.” (Whether a jury could wrongly find the mule guilty is another matter.) To say “knowing possession” may be redundant. Why?

Without knowledge, no possession crime

For criminal law purposes, “criminal possession” requires and must include “knowledge” of the thing possessed. A person is not criminally responsible for possessing a thing unless she knows of its existence, including its identity, regardless of where found. A possession attorney must be able to explain this to a jury in a way that jurors can understand.

But possession is more than knowledge: Courts define criminal possession as contraband within the “dominion and control” of the person. Even if a person knows that an item is contraband and knows where it is; that is not enough to prove that it was within that person’s “dominion and control.”

Criminal possession is “knowledge” plus “dominion and control,” in legal language. That’s the equation. If either is missing, it’s not criminal possession.

Ownership is not possession: just a relationship

Ownership of property may at times coincide with dominion and control over an item, but not always. This is counterintuitive for most people at first. But people can easily understand after thinking about it for a moment, that ownership is not possession.

If your neighbor borrows your lawn mower for a few days, you still own it. But for those few days it is no longer within your “dominion and control.” Is it within your dominion? Dominion connotes place and boundaries, and a relationship to place. Is it within your control? Control implies it is near, within immediate reach.

Ownership and possession are two different things. Your possession attorney can help people understand the difference.

Identity elements

Another basic element of any crime is identity. If someone did commit a crime, was the accused person the one who did?

Contraband Identity: prohibited act & intent element

In criminal possession cases, a different kind of identity can also be a key issue of proof. This is the identity of the contraband.

Is the alleged cocaine, for example, really cocaine? Or is it really powder deodorant, as in one case recently reported in the news. If the alleged cocaine is only powder deodorant, the proof of prohibited act fails. It’s not contraband. And similarly, if the accused knowingly possessed powder deodorant, there can be no criminal intent.

The prosecutor must introduce the alleged contraband into evidence at trial. And a witness must present scientific proof of the identity of the substance. If not, or if evidence is weak, the defendant is not-guilty.

Defense analysis: possession attorney

While we categorize facts and legal concepts for purposes of analysis, in real life things seldom fit neatly. And when it comes to criminal possession laws, the elements of mens rea; and actus reus overlap.

Transitory possession and the hot potato: What about the transitory possessing of an item that does not belong to you, but to someone else? Evidence of intent to exercise dominion and control may be lacking.

Mere presence is not possession: And what about the situation where a person is present where police find illegal contraband. Even though the person knows about the illegal item and is present; this is not enough to be a knowing possession crime.

Prescription Drugs: possession attorney

Prescription drugs, also called “legend drugs,” may be lawfully possessed, as follows:

“Exclusion for prescriptions. (a) Nothing in this chapter shall prohibit the possession of a legend drug by a person for that person’s use when it has been dispensed to the person in accordance with a valid prescription issued by a practitioner.”

Minn. Stat. § 151.37, Subd. 7 (2025)

“Controlled Substance” possession crime statutes in Minnesota Statutes Chapter 152 generally prohibit possession that is “unlawful.” In other words, lawful drug possession is not a crime.

And one way drug possession may be lawful is possession of “a legend drug by a person for that person’s use when it has been dispensed to the person in accordance with a valid prescription issued by a practitioner.” So keeping prescription drugs in the container provided by the pharmacist, should include that helpful information.

Quarter Gram Drug Possession Gross Misdemeanor

Quarter gram possession threshold: The under-quarter gram law is important for “controlled substance” possession cases. The Minnesota Legislature made some changes to Minnesota “Controlled Substance” laws, effective August 1, 2016. One of those changes created a Gross Misdemeanor for some “controlled substance” possession, for less than 0.25 grams or one dosage unit.

Limitations of quarter gram law

Limited to first-timers: This law only applies to a person “not … previously convicted of a violation of this chapter …” And the law applies to all “controlled substances” other than heroin. But otherwise, the Fifth Degree charge is still a felony.

Before 2016, prosecutors could charge even these amounts of “controlled substances” as a felony. A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences among other consequences. So the law is a baby-step in the right direction.

The statutory language

Quarter gram threshold in Minn. Stat. § 152.025, Subd. 4 (a)(1):

“the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”

Minn. Stat. § 152.025, Subd. 4 (a)(1)

Does this mean defense lawyers will no longer need to litigate trace amount issues and cases? No. The Gross Misdemeanor offense level is still a serious crime. And, this new law does not apply to heroin or federal cases.

Dosage units: When can a prosecutor charge quantity in dosage units, rather than weight? The statute says: “or one dosage unit or less if the controlled substance was possessed in dosage units … .” Minn. Stat. § 152.025, Subd. 4 (a)(1). So instead of the less than quarter gram threshold, we have a one dosage unit threshold, for a Gross Misdemeanor (instead of a felony, for more).

We can be divide these cases into two categories: prescription drugs and unregulated, underground-economy drugs. Most people possess prescription drugs in pill form. A “dosage unit” could be one pill, or more than one; depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.

But for underground-economy drugs, “one dosage unit” could be more than one pill; or more than one square of LSD blotter paper. For example, see State v. Palmer, 507 NW 2d 865 (Minn. App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit.”)

Minnesota’s 2023 marijuana reform legislation, decriminalized possession of small amounts for 21 and older. See:

Minnesota Marijuana Lawyer | Cannabis Defense.

But other plants like Khat or still a crime to possess regardless of amount.

Pre-trial Diversion & Statutory Stay of Adjudication

What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18? They are still available for people facing charges of Minnesota Fifth Degree “Controlled Substance” Crime, Gross Misdemeanor, e.g., under quarter gram cases.

Question? Call Possession Attorney Thomas Gallagher, 612 333-1500

Possession Attorney Thomas Gallagher is a Minnesota Drug Defense Lawyer; since 1988. He defends people targeted by Minnesota’s Prohibition laws.

If people understand the law better, fewer will be giving evidence. And if more criminal lawyers had a solid understanding of drug possession laws, even fewer people will get convictions. With so much at stake, you need the best defense. You are welcome to call Attorney Thomas Gallagher with questions.

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