Drug Possession and Distribution: Legal Consequences in the U.S.

The United States is the largest consumer of illegal drugs.

Our young people are insufficiently aware of the dangers and legal consequences of buying controlled drugs for recreational purposes, such as buying the occasional gram of cocaine to split with friends or bringing a few tabs of ecstasy to a fraternity party – all in the name of having a little college fun.

But what if someone is caught and arrested for either possessing or distributing controlled substances?

This article summarizes the types and legal classifications of controlled drugs, the criminal penalties surrounding the possession and sale of controlled substances, and the types of evidence the law requires to convict drug offenders.

Possession and Sale of Controlled Drugs

The crimes of possession and sale of controlled narcotics carry severe criminal penalties. Federal and state laws strictly prohibit the possession of controlled substances unless prescribed by a physician. Controlled substances include drugs such as oxycontin and cocaine.

Criminal Liability for Possession

A person can be found guilty of possessing unlawful drugs if the prosecutor can prove that the individual had physical control of the drug and exercised that control through acts demonstrating ownership and control of the drugs.

Classification of Controlled Drugs

The Control Substances Act

The Federal Drug Administration (FDA) classifies drug types based on whether or not a specific drug has an accepted medical use and purpose and whether it carries a high risk for harmful abuse and physical dependency.

The FDA drug classifies controlled drugs from the most dangerous to the least dangerous.

“Schedule I” drugs have the highest potential for abuse and the potential to create severe psychological and physical dependence. “Schedule V” drugs, such as prescribed and some over-the-counter cough medicines, are said to carry the lowest potential for abuse and physical dependence.

Examples of “Schedule I” drugs:

• Heroin
• LSD
• Ecstasy
• Cocaine
• Peyote
• Cannabis

The classification of  Cannabis (marijuana and hashish) as a Schedule I substance remains a highly controversial topic. As of 2023, cannabis for medical use has been legalized for medical use in most states. In states like California, it is lawful for adults (21 or older) to use it for recreational purposes.

Under criminal law, there are two primary forms of possession:

1. Proving actual possession of drugs, also called by prosecutors as possession in fact, is the easiest and most straightforward of drug crimes to prove. To prove possession, the prosecutor must show that the defendant was physically in possession of the drugs. This means the drugs were physically on or near the defendant and that the defendant had physical control over the drugs.

2. Proving constructive possession of drugs, also called by prosecutors. Possession in law means that the defendant has knowledge of the drugs and the ability to control the drugs, even when the defendant does not have immediate and present physical custody of the drugs. For example, the drugs are hidden in a local storage facility to which the defendant has legal access.

Once constructive or actual possession is established, the next step for law enforcement is to determine whether there was joint possession of the drugs, which means other potential defendants. Another issue law enforcement will want to consider is whether the possession was for personal use or whether there is additional evidence that points to possession with intent to distribute. The latter is a more serious crime and carries a longer term of incarceration.

Possession With Intent to Sell

Possession with intent to sell is commonly proved by how drugs are packaged and the quantity in the defendant’s possession. A person may possess a relatively small amount of drugs (one or two grams) but may be packaged in small, tenth-gram bindles.

This would give rise to the inference that the drug would be sold. Or a suspect may be caught with a large amount of narcotics, which leads the police to believe it was intended to be sold rather than just possessed for personal use.

The Authority of Police to Stop and Detain

Reasonable Suspicion

Police have the legal authority to stop and detain a suspect based on a reasonable suspicion that a person may be possessing or selling illicit drugs.

Examples of Reasonable Suspicion:

• A police officer observes a person in an area known for drug use, including the sale and use of narcotics. In observing a subject in this area, the officer notices the subject exhibiting erratic behavior.
• The police officer observes a subject being unsteady on their feet, acting and moving unexpectedly, and showing signs of impairment such as thick and slow speech.
• A police officer notices two people loitering in and around an area where drug paraphernalia has been found and where there have been recent reports of drug use.
• A police officer observes people going in and out of a house, and when the officer investigates further, he detects a strong odor of drugs coming from the house. Two people exit from the home, and the officer detains and briefly questions them.

Those who live in the poorest sections of inner cities are particularly vulnerable to becoming frequent drug users, developing dangerous addictions, and becoming easy targets for possession and arrests by local law enforcement.

Possession Of Schedule I Drugs

Possession of even the smallest amount of some drugs, like cocaine, can result in a conviction and a possible jail sentence.

Narcotics cases are commonly prosecuted for simple possession, possession with intent to sell, and transporting controlled drugs.

Drug Possession Defenses

Lack of Knowledge of Being in Possession of Drugs

This is rarely a successful defense, but assuming it is not an act of entrapment by the police, the success or failure of the defense will depend on the facts and circumstances of the case.

If the defendant has no history of selling drugs, the defense can advance a plausible defense for being in the wrong place at the wrong time. A defense that while there was a large number of drugs present, they did not belong to him and that he was only present to buy a small amount for personal use.

Consider the following two explanations:

• “I was at a party and had too much to drink. When I left the party, I had mistakenly taken someone else’s jacke. I had no idea the jacket pocket had drugs in it”
• “My friend just gave me a ride. I did not know there was bags of cocaine in the trunk of his car.”

Entrapment

The affirmative defense of entrapment is when law enforcement induces a person to commit a “crime” that the person would have otherwise been unlikely or unwilling to commit.

This defense is usually asserted where there were undercover agents involved in a drug transaction and had drugs to sell to a drug dealer who accepted the drugs —a key issue to be determined is whether the accused was already predisposed to accept the drugs with the intention to resale them. If so, the defense of entrapment will not be successful.

Sale of Controlled Drugs

The sale, delivery, manufacturing, or possession intended to distribute a controlled substance is a serious felony that can result in lengthy prison terms and substantial fines.

Drug dealing charges at the local level are treated less harshly than those charged with drug trafficking. This is because drug trafficking tends to be an organized chain of making, transporting, and selling illicit drugs.

Seller Criminal Liability

The federal and state penalties for drug dealing are based on the following:

• The type of drug being sold
• The quantity of the drug being sold
• The criminal history of the offender. Whether the defendant is a repeat offender with prior drug sale offenses

Federal Sentences Are Long And Punitive

You don’t have to be a notorious drug lord like “El Chapo” Guzmán to end up with a life sentence. All that is required is to sell a large quantity of controlled drugs and be a repeat offender. Consider the following example:

• First-time Federal defendants caught selling 200 grams of heroin face 5 to 40 years in prison.
• Second-time Federal defendants caught selling the same amount of heroin as the first offender (200 grams of heroin) faces a prison term of 10 years to life.

Proving Intent to Distribute Based On Direct and Circumstantial Evidence:

• The presence of large amounts of drugs
• Prepacked drugs wrapped in plastic baggies
• The presence of electronic scales
• The presence of a deadly weapon
• The presence of a substantial amount of cash in large denominations
• The presence of buy-owe lists

Law Enforcement Confiscation of Personal Property

Sometimes when a person is arrested on drug charges, the police will confiscate a car, home, or other property regardless of whether the owner is the same person as the ones in possession of the drug. The third-party owner of the property seized must then file a claim for the return of the property.

The time limits for filing such a claim are short and strictly enforced. Usually, drugs are found as a result of a police search. Therefore, a central issue with drug offenses is whether proper legal procedures were followed.

Consult a Criminal Defense Attorney

Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Lawyer as soon as possible.