Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, June 18, 2014

What is "knowing" possession of synthetic marijuana?

To convict soeone of possessing a controlled substance, the government must prove the person knew what they had.  (With the possible exception of--where else?--Florida.)  In other words, if a person thinks has marijuana in their hand but they think it is oregano, they aren't guilty of possession of a controlled substance.  This does not mean the government needs to prove a person knew it was against the law to possess the drug.  Ignorance of the law is no excuse, so telling the police that you didn't know cocaine was illegal is not going to help you out.  But, if you genuinely thought that what you possessed was sugar and not cocaine, then you may have a defense.

This principle can present interesting legal challenges, particularly when it comes to newly criminalized drugs like synthetic marijuana.  Part of the problem is that what is sold as "synthetic marijuana" is not necessarily always the same chemical.  A person may buy something marketed as "synthetic marijuana" without knowing what the intoxicant in it is or whether or not it has been made criminal.  

In these cases, what, exactly, does the government need to prove knowledge of?  Is enough to say that a person knew what they possessed has an intoxicating effect?  (If so, what about legal intoxicants like alcohol, tobacco or even caffeine?)  Is it sufficient to prove a person knew they were buying "synthetic marijuana," even if they didn't know what chemical was in it?  (Would the answer change if 1/2 of the chemicals marketed as "synthetic marijuana" were still legal to possess and sell while the other 1/2 had been criminalized?)

Yesterday, a Missouri appeals court addressed some of these issues in rejecting a challenge to a conviction for possession of synthetic marijuana.

Here are the facts:

Paul presented testimony at trial that she hosted a "card party" at her home on November 17, 2011. When Paul left her party briefly "for a beer run," her guests called her and asked if they could burn "K2" or "Mr. Happy" — both brand names for synthetic marijuana. One of Paul's guests had purchased the "Mr. Happy" at a gas station. Paul testified that she instructed her guests to wait until she got home because she was not familiar with the product.


When Paul returned home, she inspected the package. Paul testified that the substance's label warned that its contents were "not for human consumption," and that the label stated "probably three times" that its contents were "one hundred percent legal." After reading the "Mr. Happy" package, Paul allowed the cigarette to be burned in the ashtray "like . . . incense." Paul testified that no one actually smoked the substance. 

In rejecting Paul's appeal, the court held that "the State is required to prove that the defendant had knowledge of the general character of the substance — "i.e., that the substance was a drug of some sort, and not just baking power" — the State is not required to prove that the defendant knew the substance was illicit."

To the extent Paul is arguing that there was insufficient evidence to prove that she had knowledge of the substance's general character, that argument also fails. While there was testimony at trial supporting Paul's position, when properly viewing the record in the light most favorable to the verdict, the evidence is sufficient to prove beyond a reasonable doubt that Paul had knowledge of the general nature of the substance found in her kitchen. When Chief Garton found the substance in Paul's home, it was in an ashtray and was rolled up in a paper in a manner commonly used to smoke marijuana. Additionally, Paul testified that the "Mr. Happy" package referred to its contents as "hash"— a common slang term for marijuana and the short form of "hashish," which is the resin extract of the cannabis plant. See State v. Reiley, 476 S.W.2d 473, 473 (Mo. banc 1972). Finally, the substance's label made multiple statements regarding its legality. Based on this evidence, the circuit court could reasonably infer that Paul was not under the impression that the "Mr. Happy" product was simply incense and that she was aware of the substance's drug-like nature. Accordingly, the court did not err in failing to sustain Paul's motion for judgment of acquittal. The point on appeal is denied. 

While there may be a sound basis for the court's decision, I think its cursory discussion of Paul's arguments is problematic.  To be sure, the government does not need to prove Paul knew that possession of synthetic marijuana was illegal.  But it did need to prove she knowingly possessed the substance.  If all Paul knew was that the substance was named "Mr. Happy" and might be an intoxicant, however, I'm not sure that necessarily tells us she knowingly possessed a controlled substance.

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I suspect the trial court either believed Paul actually knew it was synthetic marijuana or else that she was “willfully blind” to the substance’s nature. The evidence: the product was called “Mr. Happy”; Paul was throwing a card party, not a tupperware party; she referred to the substance as “hash”; her guests felt obliged to ask if it was okay to burn it; the substance was rolled up like a joint; and the unlikelihood of anyone feeling the need to slap several “100% legal” disclaimers on simple incense.

The government isn’t required to prove Paul knows the law – i.e., that she knows synthetic marijuana is illegal. Indeed, outside of the tax context, such specific intent is almost never required by the law. The problem is that requiring the government to prove that Paul knows the nature of the substance she possessed could potentially morph into such a specific intent requirement. I think that might be why the court isn’t too demanding—i.e., that it was enough that Paul was (at the very least) aware of Mr. Happy’s “drug like nature”, even if she didn’t necessarily know that it was synthetic marijuana (or even further, that it had the requisite chemical composition).

Posted by: Rob Mikos | Jun 18, 2014 2:27:50 PM

Though I agree those pieces of evidence could be enough to withstand a sufficiency challenge, I still don't believe the court was particularly clear about what--exactly--the government needed to prove knowledge of.

To be sure, it’s clear that the government doesn’t need to prove Paul knew synthetic marijuana was illegal. But, it does need to prove Paul knew she possessed what it is the law criminalizes. And I think this is where the nature of the substance issue comes in.

To my mind, the nature of the substance concept already works to expand the reach of drug laws and relaxing that standard even more would be a problematic case of bootstrapping.

Here’s my quick take on why this is: Imagine a law that criminalizes the possession of chemical X. A product known as “Mr. Happy” contains chemical X. The defendant buys Mr. Happy but doesn’t read the list of ingredients. Is this defendant in knowing possession of chemical X? I don’t think there is enough evidence to say this person knew she possessed “chemical X” based on these facts. The case for knowing possession of “Mr. Happy” would be a slam dunk. But the legislature hasn’t criminalized the possession of “Mr. Happy.” It’s criminalized the possession of chemical X. And in this hypothetical (which, I acknowledge, is far from the facts of Paul’s case), I don’t see any evidence to say D knew she had “chemical X.”

I believe that the “nature of the substance” concept was developed primarily to get around this sort of problem. Even though the law says “chemical X” is illegal, courts and legislatures often say that the government can also meet its burden by proving the defendant knew of the illicit nature of the substance generally (even if the defendant did now know she possessed “chemical X” specifically). In other words, the government can get a conviction by showing either (1) D knew she had chemical X or (2) D knew she had a substance of an illegal nature (even if D did not know she had “chemical X” specifically.)

Though I agree the “illegal nature” prong can be tough to square with the principle that ignorance of the law is no excuse, I don’t see that as a reason to relax the government’s burden even more (e.g., by letting them prove knowledge simply by proving knowledge that an item can produce an intoxicating effect or is of a drug-like nature.) Proof a person knew of the “illegal nature” of the substance is already one or two steps removed from proof a person knew he or she was in possession of the specific chemical the law criminalizes. Proof that a substance produced an intoxicating effect is far enough from proof that a person knew of the illegal nature of the substance (let alone proof that the person knew that the substance was “chemical X”) that I think it would raise serious due process/notice concerns.

Again, I agree that the application in this case seems less worrisome because of some of the facts (e.g., the hash fact). And, I haven’t looked at Missouri’s synthetics statute to see exactly what it says it criminalizes. But I don’t think the court adequately addressed the sort of concern outlined above.

I also believe its reliance on the “100% legal” labeling is especially troubling. Since the government hasn’t criminalized the possession of every intoxicant in the world, I think the average person would be likely to interpret that label to mean that the chemicals in the package are ones that have not yet been made criminal. And if the government can’t at least prove D knew of the illegal nature of the substance (already a lower burden than proving D knew she possessed the specific chemical the legislature criminalized), I don’t think it has proven possession of a controlled substance.

(As a side note: a few courts have addressed similar issues in the context of khat prosecutions—including, perhaps most notably, the Sixth Circuit in US v. Caseer.)

Posted by: Alex Kreit | Jun 18, 2014 5:33:12 PM

Alex, I think you’re exaggerating the danger here. Consider your own hypothetical, made a bit more worldly. Namely, suppose that A buys a coat at Macy's. On her way out the door the police stop A, search the coat and find cocaine in one of the pockets. A claims she had no idea the cocaine was in the coat. I think it exceedingly unlikely that the government would even try to prosecute her in this case, but assuming it did, it would very likely fail to satisfy the mens rea element. There are no facts to suggest that A knew or even should have known that cocaine was in the coat.

I also think (despite your protestations to the contrary) that you’re essentially requiring the government to prove knowledge of the law. You seem to want the government to prove 1) that D knew the chemical composition of the substance she possessed; and 2) D knew that this particular chemical is illegal. Am I missing something here? Both elements would be difficult (if not impossible) for the government to satisfy, even in many cases where the defendant’s guilt is plain. This is why the law demands less of the government. I think the “illicit nature” requirement is probably more of a “did the defendant suspect – or should the defendant have suspected – that the substance she possessed was illegal?” To be sure, this demands less of the government than your standard, but not every government-friendly rule is necessarily suspect. I don’t think innocent people are going to be prosecuted and convicted under this standard. But it will enable the government to prosecute persons who are truly culpable, including many who would escape liability under your standard. To illustrate, suppose that A goes to a dark alley at midnight, gives a man concealing his face $3,000 cash, and he hands her a dirty used coat. Soon thereafter the police stop A and search the coat, finding cocaine. Once again A claims she had no idea cocaine was in the coat. Is she culpable? Of course, it seems plain she knew she was buying cocaine or at least doing something untoward (a transferred intent like state), but under your standard, I’m skeptical she could be convicted.

Bottom line, I don’t think the government should have to prove that a defendant knew the precise chemical composition of the substance she possessed, and neither should it have to prove that the defendant knew that substance is illegal. Rather, I think it sufficient if the government proves the defendant knew – or should have known -- she possessed something that was probably illegal. (It’s inescapable to include some awareness of the law, but I would lessen that requirement by including the probabilistic language and by not requiring knowledge of the exact chemical possessed.)

Posted by: Rob Mikos | Jun 19, 2014 8:42:54 AM

Hi Rob, thanks for your response. I don’t think we’re actually that far apart on all of this.

You wrote that I seem to want the government to prove both that D knew the chemical composition of what she possessed and that D knew the chemical is illegal. That is not the case at all. I’m saying the law allows the government to prove knowledge in these cases either by proving D knew the she possessed a specific substance that has been criminalized or by proving that she knew of the illegal nature of the substance. I don’t think there would be any problem proving guilt beyond a reasonable doubt under this standard in the $3,000 coat hypothetical. I also agree that this rule leaves the person in your first hypothetical safe, since there would be no proof of knowledge. So, at least to this point, I think we are in agreement.

My concern comes in with extending the “illicit nature” concept even further, which I think the court’s decision in Paul could be read as endorsing. Specifically, I think a rule that lets the government prove knowledge simply by showing D knew the item produced an intoxicating effect (or was aware the substance had a “drug like nature”) can be very problematic in a subset of drug cases (namely analog cases, khat cases, synthetic marijuana cases, etc.)

Here is why: The law criminalizes only certain intoxicants, not all intoxicants. If we lived in a world where all intoxicants were illegal, then I don’t think there would be problem with permitting a conviction based on knowledge that something is intoxicating (assuming a definition of intoxicant that was specific enough to avoid any vagueness issues). But we do not live in that world. For better or worse, intoxicants like the different chemicals marketed as synthetic marijuana are legal until they are scheduled/criminalized (or unless a prosecutor is able to make a case under an analog statute.)

Permitting someone to be convicted on a showing that they knew a chemical had a “drug like nature” means that someone could be convicted of a crime without either (1) knowing they had substance X (the substance that has been criminalized) or (2) knowing of the illegal nature of the substance they possessed. In a world where not all intoxicants are illegal, I believe knowledge that something is an intoxicant is far from the equivalent of knowledge that an item is of an illicit nature (and further still from knowledge that the item is “chemical X” or “substance Y”). And I have a hard time seeing a legitimate basis for interpreting the law as broadly as the court seems to have in Paul with its “drug like nature” remark, particularly since the rule of lenity requires courts to read ambiguities in criminal statutes narrowly in favor of the defendant.

I should add that I also agree completely that the “drug like nature” rule doesn’t pose much danger in the typical drug case (e.g., cocaine, marijuana, etc.) Where this sort of rule becomes a problem is in cases involving obscurer chemicals.

The khat situation is perhaps the classic example: the federal government hasn’t scheduled khat but it has scheduled two chemicals found in khat (cathinone and cathine.) I don’t believe that the government should be able to convict a person of a controlled substance offense involving khat simply by proving D knew she had khat or by proving D knew the plant has an intoxicating effect. Unless and until the khat plant itself is scheduled/criminalized, I think the government should need to prove the defendant knew she possessed one of the actual scheduled chemicals (i.e., knew khat contains cathinone or cathine) or that she knew of the illegal nature of the plant. (My impression is that most federal courts to have looked at the issue also take this position, though I haven’t looked back at the cases in a while.)

To be sure, requiring the government prove knowledge of an obscure chemical might seem odd. But (at least in the case of khat) the government only has itself to blame. The DEA could schedule the khat plant (marijuana, as a plant, is scheduled.) But, weirdly, it hasn’t. (And, of course, despite having failed to take the time to schedule the plant, the government can still get a conviction by showing the defendant was aware of the illegal nature of the plant.)

So, while I think that our point of departure (drug-like nature versus illegal nature) is small one in the great majority of cases (cocaine, marijuana, heroin, etc.), I believe it is a very important one in a slice of cases such as khat, synthetics, etc.

The one last point of disagreement I’d have is with the “should have known” issue you mention. “Should have known” is, of course, a negligence standard. If a legislature wants to criminalize the “negligent possession of a controlled substance,” it can amend the drug laws to say so. But as long as drug laws criminalize the “knowing possession of a controlled substance,” I don’t think there would be any basis for permitting a jury to convict in a drug case on a “should have known” standard. (Willful blindness, of course, is justified on the theory that it is the equivalent of knowledge—actual awareness of a high probability of a fact coupled with the failure to confirm the fact.)

Posted by: Alex Kreit | Jun 19, 2014 7:45:25 PM

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