Drug laws in Missouri are codified in the Comprehensive Drug Control Act. This Act consists of Chapter 195 (Drug Regulations) and Chapter 579 (Controlled Substance Offenses). Chapter 195 creates a list of controlled substances divided into schedules from I to V, with Schedule I being those with no acceptable medical use and a high potential for addiction and abuse. The other schedules contain drugs with legitimate medical uses and are grouped based on their likelihood to lead to abuse and addiction with Schedule V being the least likely. Any substance listed in any of the schedules is illegal to knowingly possess except as authorized by law. Interestingly, marijuana is in Schedule I with heroin and LSD while cocaine is in Schedule II. The schedules are for regulatory purposes and are not used to determine punishment. In other words, there is not a different range of punishment for possession of a Schedule V drug than there is for a Schedule I per se.
Punishments and other criminal issues are dealt with in Chapter 579. Possession of any amount of a controlled substance other than less than 35 grams of marijuana is a class D felony punishable by up to 7 years in prison and/or a fine of up to $10,000. Possession of larger amounts of certain controlled substances can lead to trafficking second degree charges with significantly higher consequences. Punishments for marijuana or any synthetic cannabinoid are:
- More than 10 grams but less than 35 grams is a class A misdemeanor punishable by up to 1 year in jail and/or a fine of up to $2000.
- 10 grams or less is a class D misdemeanor punishable by a fine of up to $500 unless
- The defendant is a prior drug offender, in which case it is a class A misdemeanor.
Many defendants feel like there is not much they can do to get out of a drug case. After all, they reason, the police have proof of the existence of a controlled substance and, presumably, solid evidence that the defendant was in possession of said substance. They think the best they can hope for is a diversion program or a favorable plea deal. Nothing could be further from the truth. Drug possession law is complicated and the state actually has a fairly high burden of proof. A good criminal defense lawyer can sometimes use fine distinctions within the law to get a dismissal or a win at trial. These distinctions often involve issues regarding the state's ability to actually prove that the defendant was knowingly in possession of a controlled substance.
What Constitutes “Possession” of Drugs?
Missouri criminal law holds that a person is considered to be in possession of a controlled substance if, with knowledge of the presence and nature of a substance, they have actual or constructive possession of the substance. This may seem straightforward at first glance, but there is a lot going on here. Critically, it means that having possession of drugs does not mean that you are guilty of possessing drugs if you were not aware of the presence of the drugs or did not know of the nature of the drugs. An experienced criminal defense lawyer can sometimes make a case based on this. Additionally, laws regarding constructive possession are complicated and filled with subtleties that often allow for a good defense.
Actual possession is relatively easy to understand. Missouri law says that a person has actual possession if they have a substance on their person or within easy reach and convenient control. The most common real world example of this is when police find drugs in someone's pocket or purse. Actual possession cases are hard for a defense lawyer to fight just on the basis of possession; often they must focus on search, knowledge or testing issues.
According to Missouri law §195.010 (34) a person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. In simpler terms, if you do not have the drugs on your person but the police can prove that they are yours, you are in constructive possession. Here is a hypothetical example: you live alone and the police are serving a search warrant because you sold cocaine to an undercover officer. They find cocaine in a locked safe in the basement and the key is in your pocket. The drugs are not in your actual possession, but the police are going to have an awful strong case for constructive possession. Additionally, many constructive possession cases are proven by the defendant admitting to possession of drugs not under their actual control.
Case law provides some insight into the ways the state can prove constructive possession. In State v. Purlee 839 S.W. 2d at 588 the court says that “(a)bsent proof of actual possession, constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance.” So, the state must give facts that prove that someone knew the drugs were present to get a conviction. They must also, at a minimum, prove that the person had access to and control of the area where the drugs were found and, if more than one person had access, additional evidence connecting the accused with the drugs must be provided. In general, the state must show that a “totality of the facts reasonably considered” would lead to a conclusion that the defendant knew of and had control of the drugs.
A list of facts that can help lead to such a conclusion is laid out in several cases. State v Wood 284 S.W. 3d 630 has a list that, while not all-encompassing and specific to vehicle searches, is still very illustrative. It says that the following are “additional incriminating circumstances that will support an inference of knowledge and control:”
- Finding large quantities of drugs in the vehicle
- Finding drugs having large monetary value in the vehicle
- Easy accessibility or routine access to the drugs
- The odor of drugs in the vehicle
- The presence of the defendant's personal belongings in close proximity to the drugs
- Making false statements in an attempt to deceive the police
- The defendant's nervousness during the search
- The defendant's flight from law enforcement
- The presence of drugs in plain view
- Other conduct and statements made by the accused
- The fact that the defendant rented the vehicle
As you can see, law enforcement does have some ways of building a case against someone who is not in direct control of drugs found during a search, but the burden of proof is on them. They most often have difficulty in cases where more than one person has access to the area where the drugs were found. A knowledgeable and experienced criminal defense attorney will know how to pick apart a state's constructive possession case and be able to cite case law to mount a defense.
In State v Yarber 5 S.W. 3d 592, for instance, a defendant was sentenced to 15 years as a repeat drug offender but the case was overturned because the appeals court found that the state did not prove possession. The defendant had paid someone to drive him to another person's house and, when they couldn't find the house, asked him to drive the defendant around for a while. When the defendant saw a young man standing on the corner he got out, talked to him briefly and got back in the car. They were pulled over shortly after that for an inoperable license plate lamp and the police officer found crack cocaine beneath the passenger seat. The appeals court overturned the conviction based on the fact that the defendant did not have exclusive access to the vehicle, the drugs were in a hard to see location, the state did not prove how long the drugs had been there and could not prove the events prior to the traffic stop occurred exactly as the driver stated. This allowed for a reasonable doubt as to who placed the drugs under the seat.
Another commonly cited case is State v. Barber 635 S.W. 2d 342. In this case the police entered an apartment not owned by the defendant in order to arrest the occupant for an outstanding warrant. The defendant was present in the apartment along with 6 other adults. He was found in a room with 2 other adults and a large amount of illegal pills. No police officer testified that the defendant had actual possession of any of the pills on his person. The Missouri Supreme Court overturned the defendant's conviction based on the fact that the state did not prove that the defendant had regular use of the premises, did not prove how long he had been there and did not prove how long the drugs had been there. The mere fact of his presence in a place with a large amount of illegal drugs was not sufficient to uphold a conviction absent any evidence showing that he was in control of the drugs.
State v. Ramsey 358 S.W. 3d 589 is a similar case. There the police served a search warrant on a one-bedroom house that the defendant lived in with a woman and found cocaine in a wastebasket in the bedroom. The appeals court found that since the state did not prove that he had exclusive access to the bedroom and no other circumstances showed that he had constructive possession of the drugs his conviction must be overturned.
What is Knowledge of the Presence and Nature of a Substance?
In order to secure a conviction for possession of controlled substances the state must not only prove that you had control of the drugs, but that you knew they were there and knew the “nature” of them. It would, after all, be very unfair to be found guilty of possessing drugs that someone had slipped into your personal belongings or that you legitimately thought were a legal product. The state usually proves this through circumstantial evidence related to the actions of the accused. The state does not even have to prove that you knew the substance was illegal. In State v. Paul 436 S.W. 3d 713 the defendant was convicted of possessing a hash product called “Mr. Happy” that was purchased at a gas station and had packaging with prominent proclamations of its' (inaccurate) legality. The conviction was upheld on appeal on the basis that the defendant was aware of the substance's drug-like nature.
The state's burden of proof in these matters is fairly low. It is generally assumed that a reasonable person knows which items are in their immediate possession and whether or not those items are drugs. There have, however, been some rulings that give defense attorneys at least a little something to work with. Most notable is State v. Clark 490 S.W. 3d 704. In that case, the police were called to the defendant's residence to investigate a domestic assault. Upon entering they found the defendant sitting on the bed in a bedroom he shared with the victim, his girlfriend. The police arrested the defendant and removed him from the room. A subsequent search found two cloth pouches next to the bed. Both were closed, not able to be seen through and contained methamphetamines. The defendant was arrested, convicted and sentenced to 10 years in prison for the drugs. The conviction was overturned because the Missouri Supreme Court ruled that the state had done nothing to prove that the defendant had any knowledge of the presence of the methamphetamines in the pouches.
What Does This Mean for Your St. Louis or St. Charles Drug Case?
Missouri drug possession law is complicated. The examples cited above are just a small representative sample of the immense volume of case law on the subject. They are all instances in which someone was convicted and their case was overturned on appeal. An experienced criminal defense attorney like Ruth Beerup knows how to use the lessons embodied there to get dismissals or wins at trial. She has been practicing since 1996 and has an instinctual understanding of where the holes in a case are. If they are there, she will find them.
More importantly, Ruth knows how to communicate with her clients. Reading through the cases above you were probably struck by how the difference between 10 or more years in prison and freedom sometimes comes down to the tiniest details. Ruth knows how to pull those details out of her clients even when they don't know they are important. Her calm and understanding demeanor will have you telling your story naturally, without judgment, and in a way that allows her to gather all the information she needs to fight for a favorable outcome.