AZ Supreme Court Affirms “Possession-for-Sale” Possible, Even If No Drugs Taken

AZ High Court uses “constructive possession” standard in reverse-sting operation case.

In State of Arizona v. Keven Ottar and Ruan Junior Hamiliton, recently, the Arizona Supreme Court affirmed the Appeals Court decision to continue prosecution of Marijuana Possession charges, even though the defendants did not leave with the drugs.

The case involved a “reverse-sting” operation where law enforcement officials went undercover and acted as dealers to sell illegal drugs, rather than buying them.  The defendants met with undercover detectives who agreed to sell a large quantity of Marijuana to the defendants. The defendants and undercover detectives completed most of all transactions of the sale. However, the defendants were arrested before they could leave with the drugs. Given this was a reverse-sting operation detectives did not allow the defendants to actually take and leave with the Marijuana. Multiple charges were handed down in the arrests, including Marijuana Possession charges.

Under A.R.S. 13-3405 a person is in violation of a Marijuana Possession laws if they knowingly “possess”, or use Marijuana,  “possess” it for sale. In determining whether or not the defendants could be prosecuted under this charge, the Appeals Court and the Arizona Supreme Court relied on the definition of “possess” and “possession” under AZ criminal code A.R.S. 13-105 definitions which indicate that (34) to “possess” requires a person knowingly have physical possession or otherwise exercise dominion or control over the property (Marijuana)  (35) “Possession” means a voluntary act if a person knowingly exercised control or dominion over the property (Marijuana).

In this case “dominion” was not in challenge by the defendant, so the critical issue was did the defendants have “control” over the Marijuana. Arizona’s criminal code does not define the word “control” so it was given a “commonly understood” or “ordinary meaning”. A primary authority for this is allowed under A.R.S. § 1-213.  Under this rule it is indicated that words should be construed according to the common and approved use of language, unless they have acquired a particular meaning under the law.

The AZ Supreme Court cited two previous cases for precedent of their conclusions United States v. Kitchen (1995); and United States v. Adams (2010), both of which involved “reverse-sting” operations. The high court used the standard of “constructive possession” since the defendants had done all they could do in the transaction, short of leaving the scene with the drugs since the  undercover police would never have allowed the defendants to leave with the drugs. Subsequently they were arrested prior to actually taking the illegal drugs. The US Supreme Court ruled that in a “reverse-sting” operation “(control) is not rendered legally impossible merely because a defendant does not leave the scene with the drugs” due to the impracticality or ability to do so given the circumstances. Given this principle, the high court concluded that a defendant may be found to “possess” or be in “possession’ did not have exert full control over the drugs, but did have to “manifest an intent” to control the drugs.

However, the court did affirm the principal used in precedent cases that more than intent to make a purchase was needed.  They agreed with precedent cases that it was not enough for the defendants to simply go to the location of the illegal drugs; look at; smell; or touch the drugs. Rather, the sale itself had to be legally consummated by tender or other consideration in order to “manifest intent”, and thereby displaying their intent to exercise control over the illegal drugs.

As a result the US Supreme Court affirmed the decision of the Court of Appeals which held that the lower trial court had erred as a matter of law, in dismissing the Marijuana Possession Charges, resulting in prosecution of the Possession charges.

Depending on the circumstances and drug sentencing factors, Marijuana Possession for Sale offenses which may result in a Class 2, Class 3, or Class 4 felony.  All felony charges expose a person to prison in Arizona.  Convictions can result in a minimum of 18 months to 10 years in prison; exorbitant fines beginning at $750.00 to as high as $150,000.00 for individuals; and other harsh penalties.