Appellate Brief: Constitutional Law 403



Appellate Brief: Constitutional Law 403

Drug Possession Overview

Possession of certain illicit drugs violates federal and state laws. While drug possession laws vary widely from state to state, the elements of the offense are generally the same. Prosecutors must be able to prove beyond a reasonable doubt that the defendant knew the drug in question was a controlled substance and that he or she knowingly had possession of, or control over, the drug. This may also include what is known as "constructive possession," or access to an illegal drug. Such charges may be filed against one or more individuals who have keys to a van filled with narcotics, for example, rather than actually holding the drugs on their person.

Drug possession laws generally fall into one of two main categories: simple possession (for personal use) and possession with intent to distribute. The latter category typically carries much stiffer penalties upon conviction, as compared to simple possession, in the interest of both punishing and deterring drug dealers. To prove possession with intent to sell, prosecutors may present evidence such as digital scales, baggies, large quantities of the drug, large amounts of cash in small bills or testimony from witnesses.

Drug possession laws also prohibit paraphernalia such as syringes, crack pipes or bongs. The Federal Drug Paraphernalia Statute defines what constitutes drug paraphernalia but usually hinges on a determination of primary use. For example, a newly purchased water pipe may not be considered a marijuana bong unless it has drug residue or is sold explicitly as a marijuana bong. Laws also exist to restrict the possession of certain chemicals or materials commonly used in the cultivation or manufacturing of drugs, such as the laboratory equipment used to make methamphetamine. While some states have legalized possession of marijuana for medical use with a physician's recommendation, it is still considered illegal in all cases under federal law.

The term "medical marijuana" refers to the use, possession, and/or cultivation of marijuana for medical purposes. People who are terminally ill, or suffer from painful or long-term symptoms associated with certain diseases, such as epilepsy, AIDS, glaucoma, and cancer, often request medical marijuana as a form of treatment and/or pain relief.

As a general principle, medical marijuana, also known as medicinal cannabis, is no different than standard marijuana. Under the federal Controlled Substances Act, marijuana is classified as a "Schedule I drug", meaning it: 1) has the potential for abuse, 2) has no currently accepted medical use in treatment in the U.S., and 3) has a lack of accepted safety for use of the drug under medical supervision.

As such, there is a growing debate concerning the personal medical use of marijuana and its legality. On one side of the issue, some politicians and law enforcement officials would like to combat illegal drug use of marijuana and control some of its affects, such as "wide open sale of marijuana under the guise of medical purpose". On the other side, some health advocates and other drug legalization groups would like to ...