Name: Gallagher Criminal Defense
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Thirty years of defending people in possession cases has deepened the understanding of Drug Possession Attorney Thomas Gallagher.

Now you can benefit. Let’s explore criminal possession laws, cases and facts.

Possession Attorney (Prohibition Substances – Criminal)

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 that can ruin or save you.

Some defenses potentially could apply to an 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?

Only within the last 100 years or so, have we had the affliction of criminal possession laws relating to substances. After all, people have safely used them for millions of years (marijuana, alcohol, etc.) But mere possession is not a crime.

The government must prove more than that. And your possession attorney can help stop them.

Identity of the prohibited object: possession attorney

Minnesota laws make possession of 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 evidence identifying a prohibited substance with certainty.

Many 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 a “small amount” of non-resinous-form marijuana is a petty misdemeanor – not a crime.

Your possession attorney had better know what proof of identity of the substance must look like.

The 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.

The same drug may be legal in the hands of one person but criminal 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.

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 the relationship must meet the minimum criteria for criminal possession.

Drug possession - coffee — *Drug possession – coffee*

What does “possession” mean?

Whether a person is “in possession” of a thing is an issue in many kinds of criminal cases. These include “controlled substance” possession cases, i.e. marijuana, possession of cocaine, etc.

It can also be an issue in criminal cases for possession of other types of contraband items.

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 is 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 evidence susceptible to an interpretation that could support each “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.

At least three elements to every crime

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

identity;
mens rea; and,
actus reus. From the Latin, mens rea is “guilty mind” – guilty knowledge or intention 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 notice. So, due process requires notice of just what specific acts the law prohibits and subjects 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.

Specific intent is a higher level of intent. It’s intent to cause a specific result, such as intent to cause death in an intentional murder case. Specific intent elements are rare in drug cases.

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 proof is lacking.

The prohibited act element

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

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?

If the item was not in the person’s actual possession, prosecutors may argue “constructive possession,” based upon solely circumstantial evidence. “Constructive” is not “actual.” It is a legal fiction – a construct.

Your possession attorney can help shine a light on the “constructive possession” house of cards.

The 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.

Possession felony? The unknowing mule. — *Possession felony? The unknowing mule*

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 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. 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” is redundant. Why?

Without knowledge, there can be no possession crime

For criminal law purposes, “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, 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 just 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. Without either one, 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.

If your neighbor borrows your lawn mower for a few days, you still own it. But for those days it is no longer within your dominion and control.

Is it within your dominion? Dominion connotes place 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.

The identity elements

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

Identity of the contraband goes to the elements of prohibited act and intent

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 is 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 life things seldom fit so neatly.

When it comes to criminal possession laws, the elements of mens rea; and actus reus overlap.

Transitory possession – 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 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 follow:

Minnesota Statutes § 151.37 (2021), Subd. 7. “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.“

“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 it’s a good idea to keep prescription drugs in the container provided by the pharmacist, which should include that helpful information.