Docket No. 55136.
Argued October 10, 1974 (Calendar No. 17).
Decided January 27, 1976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Roger L. Wotila and Stuart M. Israel), for defendant on appeal.
Defendant was prosecuted for possession of a small residue of heroin, visible to the naked eye, in the form of a hard powdery substance on the interior of a bottle cap. Defendant sought to avoid conviction by asking this Court to construe this state's former statute making it a felony for "any person not having a license * * * [to] possess or have under his control any narcotic drug" to require possession of a "usable amount". We affirm defendant's conviction on these facts and reject the "usable amount" and the Court of Appeals "remnant of a usable amount" tests.
I — FACTS
February 21, 1969, defendant Robert Harrington and his companion Mary Jean Cox were arrested in Jackson on a charge of shoplifting. Before being searched, they were placed in the rear seat of a patrol car and brought to the police station. At trial, the two arresting officers testified that they had observed Harrington through the rear view mirror and that he was fidgeting with his hands behind his back. Both officers saw nothing in defendant's hands. Harrington was seated on the right side of Ms. Cox, about eight to ten inches away from her. One officer testified that he did not know whether defendant or Ms. Cox was right or left-handed.
After delivering their two suspects to the police station, the officers returned to the car and searched it. After removing the rear seat, they discovered two small packages, one consisting of several hypodermic needles, a book of matches, part of an eye-dropper and the cotton end of a Q-tip. The second package contained two metal bottle caps with a thin film of what was later identified as heroin inside.
Although the film was only a residue of the narcotic drug involved, that residue was readily apparent to the naked eye. The most direct testimony applicable to our test involved the police chemist:
" Q. * * * Are you able to see residue at the present time?
" A. There is some residue, yes. * * *
" Q. And, what do you mean when you use the word `residue'?
" A. It is just a hard powdery substance, which is on the interior of the cap."
The relationship of the evidence's location to defendant was described by the testifying officer as:
" A. It would be on his — more or less to the right of him, right in the center of the vehicle, where he was positioned in the seat. It was in back of him on his right side."
This, of course, removes it from Mary Cox who was on defendant's left.
The officer who uncovered the packages testified that he handled them, did not consider dusting them for fingerprints, and did not know if any fingerprint processing had been performed on these exhibits. A qualitative, but no quantitative analysis was performed on the heroin residue.
Defendant was tried and convicted by a jury of unlawful possession of a narcotic drug. He appealed, raising only one issue: "Is the possession of a modicum of heroin, insufficient in amount to be used for the purpose commonly intended, a violation of the statute?" People v Harrington, 33 Mich. App. 548, 549; 190 N.W.2d 343 (1971). In reversing and remanding for a new trial, the Court of Appeals recognized this as a question of first impression in Michigan, rejected the two tests used in this country, and adopted a new one.
"Any person not having a license * * * who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony * * *. MCLA 335.153; MSA 18.1123.
This has been repealed and replaced by the Controlled Substances Act of 1971, including MCLA 335.341; MSA 18.1070(41) which provides in relevant part:
"It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act."
"Research has not disclosed any Michigan authority on the question of the quantity of the narcotic drug required to constitute possession as proscribed by the statute. California requires the quantity to be sufficient for the drug's common use, People v Leal (1966), 64 Cal.2d 504 ( 50 Cal.Rptr. 777, 413 P.2d 665). Texas has adopted a similar rule, Greer v State (1956), 163 Tex Crim 377 ( 292 S.W.2d 122). The majority of the states that have passed on the question have held that the quantity possessed is immaterial. State v Dodd (1965), 28 Wis.2d 643 ( 137 N.W.2d 465); Schenher v State (1956), 38 Ala. App. 573 ( 90 So.2d 234); Mickens v People (1961), 148 Colo. 237 ( 365 P.2d 679); People v Norman (1962), 24 Ill.2d 403 ( 182 N.E.2d 188); State v McDonald (1966), 92 N.J. Super. 448 ( 224 A.2d 18); People v Young (Mo, 1968), 427 S.W.2d 510; Haley v State (1969), 7 Md. App. 18 ( 253 A.2d 424).
"Without local precedent, this Court is free to adopt the minority or majority view or to reject both. Our choice should be governed by our judgment of what is the most reasonable, practical and readily applicable rule for efficient law enforcement without undue encroachment on individual rights. It is our judgment that the minority view may restrict efficient law enforcement; a quantity of narcotics sufficient for its common use is not necessarily a concomitant of illegal possession. On the other hand, the majority view that the quantity possessed is immaterial is so broad a view that it may tend to encourage infringement of individual rights.
"It is our judgment that a reasonable compromise between the minority and majority views has been proposed in the article `Drugs and the Criminal Law', 12 Crim Law Quarterly 254 (July, 1970). Arthur C. Whealy there suggests that the facts and circumstances in each case be viewed to determine if it can be reasonably inferred that the quantity of narcotic actually discovered is but a remnant of a larger, usable amount. If that inference can be made, illegal possession is established." 33 Mich. App. 548, 549-550.
At the subsequent trial, this test was applied. The jury found defendant guilty and he was sentenced to three to ten years in prison.
Application for delayed appeal was denied by the Court of Appeals July 13, 1973. We granted leave January 28, 1974. 391 Mich. 769.
II — THE RELEVANT STATUTES
The charge was laid under 1952 PA 266, § 3, being MCLA 335.153; MSA 18.1123, which reads as follows:
"Any person not having a license * * * who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony * * *." MCLA 335.153; MSA 18.1123.
Both the former statutes under which this conviction occurred and the new Controlled Substances Act include possession as one of a number of offenses relating to traffic in narcotic drugs. Thus, the former statute MCLA 335.152; MSA 18.1122 made the sale and manufacture of such drugs by nonlicensees a felony; MCLA 335.153; MSA 18.1123, supra, fn 1, made possession a felony; and MCLA 335.154; MSA 18.1124 made unlawful use a misdemeanor.
None of these statutes specified that any amount must be involved before the prohibition became relevant.
Under the Controlled Substances Act, delivery, possession and use remain offenses, with penalties depending on the type of substance involved. MCLA 335.341; MSA 18.1070(41). Under the new statutory scheme, the amount of substance is relevant if it is included in schedule 3, MCLA 335.318; MSA 18.1070(18), for example, but as to heroin, a schedule 1 substance, MCLA 335.314; MSA 18.1070(14), it and other opium derivatives are proscribed "when the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation". In the absence of such specifics in the former statute, combined with the specific language prohibiting sale of "any narcotic drug", possession of "any narcotic drug" and use of "any narcotic drug", it is difficult to see how the requirement of a particular amount can properly be added to this legislative language. This logic is the approach taken by most states.
III — THE MAJORITY TEST FOR POSSESSION
The view in most jurisdictions is that possession of any quantity of proscribed narcotic is sufficient to support conviction. Possession is the gravamen of the offense charged. State v Young, 427 S.W.2d 510, 513 (Mo, 1968).
E.g., Schenher v State, 38 Ala. App. 573; 90 So.2d 234 (1956); State v Young, 427 S.W.2d 510 (Mo, 1968); Haley v State, 7 Md. App. 18; 253 A.2d 424 (1969); State v Dodd, 28 Wis. 2d 643; 137 N.W.2d 465 (1965).
Support for this approach is found in the language of the Uniform Narcotic Drugs Act, adopted with various modifications by 47 states including Michigan, the District of Columbia and Puerto Rico. Am Jur 2d, Desk Book, Doc. No. 129. Section 2 of the Act was the basis for the statute under which defendant was charged. Knowledge or intent to possess is not part of the specific language of this statute.
Thus, for example, § 4 of the New Jersey statute, also based on § 2 of the Uniform Act, provides:
"[I]t shall be unlawful for any person to * * * possess * * * any narcotic drug except as authorized by this chapter." State v Reed, 34 N.J. 554; 170 A.2d 419; 91 ALR2d 797 (1961).
This is changed under the new statute, supra, fn 1.
Therefore, it is necessary, according to this view, that qualitative analysis be performed on the unknown substance in order to determine what it is, but quantitative analysis is unnecessary to determine how much of the proscribed substance there is. State v Humphreys, 54 N.J. 406, 410-411; 255 A.2d 273, 275 (1969). Peachie v State, 203 Md. 239; 100 A.2d 1 (1953); State v McDonald, 92 N.J. Super. 448, 452; 224 A.2d 18, 20 (1966). Thus, marijuana debris about the size of a dime found in defendant's pockets was sufficient to prove possession, Fagin v People, 174 Colo. 540, 542; 484 P.2d 1216, 1217 (1971), as was 3 milligrams scraped from three gelatin half capsules, State v Young, 427 S.W.2d 510 (Mo, 1968), or the narcotic in six or seven cigarette butts from handmade cigarettes 80 to 90 percent marijuana, State v Phelps, 8 Or. App. 198, 200; 493 P.2d 1059, 1060 (1972), or .00457 ounce of marijuana in a bamboo pipe, Commonwealth v Walker, 226 Pa. Super. 149, 155; 313 A.2d 351, 354 (1973).
The most usual criticism directed against this test is that courts applying it may be convicting individuals who may not have known they possessed the substance they were accused of possessing. See, e.g., People v Leal, 64 Cal.2d 504, 509-510; 50 Cal.Rptr. 777, 781; 413 P.2d 665, 669 (1966). A closer examination of the cases, however, indicates that this is an inaccurate characterization.
It is black letter law that "[i]t is essential to the defendant's guilt that he knew that he possessed * * * narcotics". 3 Wharton, Criminal Law and Procedure, p 298. Thus, for example, even while rejecting defendant's proposed usable amount test, the Court in State v Young, 427 S.W.2d 510 (Mo, 1968), found that the record supported "the test of actual or construction possession" which "is whether `the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it'". 427 S.W.2d 510, 513. See also, e.g., Judd v State, 482 P.2d 273, 280 (Alas, 1971); State v Faircloth, 181 Neb. 333, 337; 148 N.W.2d 187, 190 (1967).
Therefore, while the general view is that any amount is sufficient to make out the offense of possession, the general view is also that knowledge of the presence of the substance is an essential element of the offense. Katz, Possession of Narcotic Drugs Under State and Federal Statutes, 25 U Miami L Rev 306, 310 (1971); 91 ALR2d 810, 821. It is only when these two requirements are present that an individual may be found guilty of possession, even by applying the majority rule.
For example, in Peachie v State, 203 Md. 239, 243; 100 A.2d 1, 2 (1953), the Court found intent, and therefore knowledge, by focusing on the use of the drug. Since evidence indicated the defendant had just injected himself with a narcotic, "it necessarily follows that he had possession and control of the instrument and its contents at the time of the injection, as well as an intent and purpose to administer the drug".
A better approach was that of the Supreme Court of Alaska, in Judd v State, 482 P.2d 273, 280 (Alas, 1971), which explained that "where the facts of a case show knowing possession of illegal drugs, it is unnecessary that a usable quantity be found so long as a sufficient quantity of the drug is found to permit proper identification".
The most direct approach has been to find that the microscopic or chemical analysis is used:
"not to determine the presence of the substance, but to identify it. So long as qualitatively the substance seized is marijuana [or any other narcotic], the statute does not prescribe any minimum amount which must be possessed. And it follows that this Court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined." State v Humphreys, 54 N.J. 406; 255 A.2d 273 (1969).
Such application of the statute prohibiting possession, we believe, effectively carries out the legislative intent to deter narcotics traffic while, at the same time, safeguarding individual rights.
IV — THE USABLE AMOUNT TEST
The usable amount rule recommended by my Brother the Chief Justice has arisen in several jurisdictions in response to objections to the "any amount" test. These Courts emphasize, first, that the scienter requirement implicit in the crime of possession cannot be met if the amount of the substance is so small that its presence can be detected only through chemical or other scientific analysis.
In reversing a conviction for possession of heroin where the substance was found in the form of crystalline incrustations on spoons, a state in which it could remain indefinitely, the California Supreme Court wrote, in People v Leal, 64 Cal.2d 504, 509; 50 Cal.Rptr. 777, 780-781; 413 P.2d 665, 668-669, citing People v Aguilar, 223 Cal.App.2d 119; 35 Cal.Rptr. 516 (1963):
"Any nonscientifically trained person, albeit an addict, observing the spoons * * * would have been unable to detect the presence of heroin since neither powder nor liquid remained. It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant. As forensic science, measuring devices and techniques improve, smaller and smaller amounts of residue are required for the chemist to detect the presence of the narcotic. The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant."
The second part of the argument for this position is that it more properly interprets the legislative purpose. Since the Legislature wanted to curtail the use of narcotics, quantities too small to be used do not pose the sort of societal danger contemplated. See, e.g., State v Moreno, 92 Ariz. 116, 120; 374 P.2d 872, 875 (1962); Greer v State, 163 Tex Crim 377; 292 S.W.2d 122 (1956).
"If this substance cannot be sold, if it cannot be administered or dispensed, common sense dictates that it is not such a narcotic as contemplated by Congress to be a danger to society, the possession of which is proscribed." Edelin v United States, 227 A.2d 395, 398-399 (DC Ct App, 1967).
While we do not accept the approach of the Wisconsin Court which rejected this test because, "A more liberal interpretation favorable to drug addicts and those illegally dealing in narcotics cannot reasonably be given", State v Dodd, 28 Wis.2d 643, 651; 137 N.W.2d 465, 469 (1965), the rule does present serious difficulties. When viewed according to our criteria, this rule would be more difficult to administer than the majority view.
No court which has adopted this standard has indicated what a usable amount would be. It is an amount usable "under the known practices of narcotic addicts". State v Moreno, 92 Ariz. 116, 120; 374 P.2d 872 (1962), and is not a quantity that is useless for consumption or sale, People v Thomas, 246 Cal.App.2d 104, 111; 54 Cal.Rptr. 409, 414 (1966). Therefore, while it is clear that it is not a minute or microscopic quantity, it is unclear just what it is, a standard which is so vague as to be unfair to both defendant and the state which is responsible for its administration.
Courts have been unable to specify the exact amount prohibited where the Legislature has not done so. For us to invent the forbidden amount in the light of this legislative silence would be impermissible judicial legislation. Where the Legislature has done so, as in sections of the Controlled Substances Act, for us to select other than these legislatively-designated benchmarks would be equally impermissible.
If the test were to be applied to refer to an amount appropriate for defendant's use it would require testimony involving defendant's habit, bringing us close to if not within the constitutionally prohibited area regarding defendant's status as an addict. Robinson v California, 370 U.S. 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962).
If the test were applied so that expert testimony admissible at trial would establish the standard, the result could well differ from courtroom to courtroom and expert to expert, and create the kind of uneven administration of justice we must avoid.
The legislative policy is obviously to stop the horrendous traffic in narcotics which has led to the unfortunate addiction of so many people, and the unfortunate waste of human life. Thus, the Legislature in its attempt to guard the public health and safety has proscribed the use, possession and sale of the illegal substance. There is no legislative qualifier that it is possession with intent to use that is forbidden. Therefore, we cannot say it was the legislative intent to outlaw possession of only a usable amount of narcotics.
For these reasons we must reject defendant's request to apply the usable amount test to narcotics convictions.
V — THE REMNANT OF A USABLE AMOUNT TEST
The Court of Appeals presented its new standard for determining possession as an attempt to facilitate efficient law enforcement without undue encroachment on individual rights. While its "remnant of a larger, usable amount" approach may have seemed attractive as a matter of theory, the problems of administration as manifested in defendant's trial indicate that this goal was not quite achieved.
At Harrington's trial, the prosecution first attempted to apply the test by asking the expert from the Michigan Health Department Crime Detection Division:
" Q. [C]an you form a conclusion as to whether or not what you call a residue is the remnant of what was a larger quantity in these caps?
" A. I can merely testify as to what I actually know is in that cap. As far as what may have been in there I can't say."
Obviously, that testimony did not do it. Therefore, the only evidence upon which the jury could have found that the substance found in the back of the patrol car was the residue of a larger quantity was the testimony of a police officer, admitted over defendant's objection, that he had seen fresh "tracks" on defendant's left arm.
The court permitted this line of questioning, explaining:
" The Court: I will agree with Mr. Biewend that under the decision the Court of Appeals rendered in Mr. Harrington's appeal of the prior trial here, setting forth that the People must show, and the Court must instruct that the residue that of any narcotics is found must be shown it was part of a useable quantity, then whether or not the Defendant might have used it in the past becomes a circumstance for the jury to consider as to whether or not there was a useable quantity. The Court of Appeals in giving to Mr. Harrington here in one respect in the sense that is taken away in the other cause, there are under prior laws it was why it would not go into the matter of tracks under the facts presented here thus far, but under the Court of Appeals decision, and it is a circumstance to be considered by the Jury, as to whether or not there are indications that the Defendant was a user, which would go to whether or not there was a usable quantity, in the possession prior to the arrest in the picking up of the paraphernalia for use in narcotics. So, under that Court of Appeals decision the Court would allow to go into what the testimony — whether or not there were tracks, indication of recent use of narcotics by Mr. Harrington."
Even if such evidence were to be tortuously construed as showing that defendant was not an addict but had merely used heroin, it is still extremely prejudicial. Further, such needle tracks show only that he or she had possibly injected heroin or another substance at some recent time. They do not show that defendant used the particular substance at issue.
Another possible way of proving the substance was a remnant of a usable amount would be by testimony of an eyewitness. The obvious difficulty of obtaining such testimony is but another reason why administration of this approach is so difficult.
VI — CONCLUSION
In this case defendant was found in possession of bottle caps with heroin residue apparent to the naked eye. We hold that such possession is in violation of MCLA 335.153; MSA 18.1123 which makes it a felony if "[a]ny person not having a license * * * shall possess or have under his or her control any narcotic drug".
This is not the kind of case where scrapings are taken from the inside of a coat pocket, or a plastic box on a dresser, People v Pippin, 16 A.D.2d 635; 227 N.Y.S.2d 164 (1962). Although the evidence was part of paraphernalia which, arguably, might have been the only thing defendant thought he was hiding, the white encrustation was there for him to see. Therefore, the mens rea threshold was successfully crossed by the prosecution.
Where there is an amount of narcotic visible to the naked eye, regardless of how much it is, there is a sufficient amount to permit prosecution. We leave open the question of whether it is possible to sustain a conviction if the amount involved is not visible.
As for defendant's argument that possession was not established, we find that there was sufficient evidence to support a finding of fact that the narcotic drug and implement belonged to defendant. The police made a practice of examining their patrol car after every use. Therefore, the goods must have been left by one of the two passengers, Harrington or Ms. Cox. The evidence was found to defendant's right. Ms. Cox was seated on his left.
The conviction is affirmed.
COLEMAN and LINDEMER, JJ., concurred with WILLIAMS, J.
FITZGERALD and RYAN, JJ., took no part in the decision of this case.
The question presented by this appeal is whether the possession of an amount of heroin insufficient for the use commonly intended will support a conviction for violation of MCLA 335.153; MSA 18.1123.
We hold it will not.
The defendant and a companion were arrested on a charge of shoplifting and transported to the police station in the rear seat of a police car. On the way the police officer observed defendant in the rear view mirror squirming and fidgeting with his hands behind his back. Later the officer removed the rear seat and two small packages were found. Two metal caps in one of the packages contained a minute residue of heroin.
The other package contained paraphernalia described as a "heroin kit".
Defendant was tried and convicted by a jury of unlawful possession of a narcotic drug. The Court of Appeals reversed the conviction and ordered a retrial. The defendant was again convicted and that conviction was affirmed by the Court of Appeals.
In its opinion reversing defendant's first conviction the Court of Appeals pointed out that there is a split of authority on this question. California and Texas require that the quantity be sufficient for the drug's common use. See People v Leal, 64 Cal.2d 504; 413 P.2d 665; 50 Cal.Rptr. 777 (1966), and Greer v State, 163 Tex Crim 377; 292 S.W.2d 122 (1956). A majority of the other states hold that if the substance possessed can be identified any quantity will support conviction.
Acknowledging that the minority view may impede efficient law enforcement, and the majority view may encourage infringement of individual rights, the Court of Appeals adopted as a compromise the rule suggested by Arthur C. Whealy of the Ontario Bar in his article Drugs and Criminal Law in 12 Crim Law Quarterly 254 (July 1970). He reported that some Canadian courts have held that if the facts and circumstances of the particular case will support a reasonable inference that it is the remnant of a larger, usable amount, possession is established so as to warrant a conviction.
We are not persuaded by the reasoning.
Even to concede that the remnant is from a usable amount is not to concede that possession of a remnant is possession of the usable amount. Possession of the hide is not possession of the horse.
But apart from any logical deficiency in such a rule we cannot accept it for a more basic reason.
This statute is an exercise of the police power in the area of public health. It has legitimacy and effect only insofar as it can be applied to the accomplishment of a proper function in the area of promoting public health.
To proscribe the possession of an amount of heroin insufficient for use can in no way be justified as promoting public health.
We are constrained to construe statutes so as to preserve this constitutional validity. If we were to adopt the view that possession of any amount of heroin less than a usable amount was proscribed by this statute we would be duty bound to hold the statute void.
Accordingly we hold the proof of possession of less than a usable amount of heroin as here will not support defendant's conviction.
In light of our disposition of this issue we do not reach the other matters urged on appeal.
The conviction is set aside and defendant discharged.
I am unable to join in the Court's disposition of this case.
I agree with the Chief Justice that the Legislature did not intend to proscribe possession of a mere residue of a controlled substance.
The purpose of the statute is to protect the public from the harm claimed to be caused by the use of drugs. Possession of a minuscule amount which cannot be used or distributed for use and which can cause no harm is not within the intendment of the statute and is not a criminal offense.
The people sought to establish possession of a larger amount of heroin circumstantially with evidence of track marks to show that the defendant used the heroin. The prosecutor conceded that without such evidence the people could not prove that the remnant was part of a larger amount or that a larger amount was ever in Harrington's possession.
I also find myself in agreement with Justice WILLIAMS regarding the dangers of evidence suggestive of a defendant's status as an addict. See Robinson v California, 370 U.S. 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962). I would go further, however, and require the people to prove violation of the narcotics laws without track-mark evidence. The risk that a defendant will be convicted because the jury believes he is an addict outweighs the probative value of track-mark evidence and is far too great to allow introduction of such proofs.
See McCormick, Evidence (2d ed), § 185, pp 438-439.