Constructive Possession: Can I be convicted of a crime if I didn't have anything on me?

Criminal Defense Lawyer Zak Goldstein

Pennsylvania and United States law make the possession of all sorts of substances and objects illegal. For example, state and federal law may make it illegal to possess drugs, guns, and other types of contraband under all sorts of different circumstances. When a defendant is arrested and charged with a possessory offense, the actual possession of the contraband in question is an element of the offense. This means that the government must prove that the defendant possessed the thing beyond a reasonable doubt. Although this sounds simple in theory, possession can often be difficult to prove because police and other law enforcement officers often find contraband which is not physically on someone. In that case, the doctrine of constructive possession may come into play, and it may provide a strong defense in your case. 

What is Constructive Possession?

Constructive possession is a legal doctrine which allows prosecutors to bring criminal charges and potentially obtain convictions for possessory offenses like drug possession and a Violation of the Uniform Firearms Act (“VUFA”) in cases where the contraband was not actually found physically on the defendant. In cases where the defendant is facing gun charges or drug charges, constructive possession is often a defense at trial even if the motion to suppress was unsuccessful. However, constructive possession, unlike physical possession, can be difficult to explain and for jurors to understand.

Physical possession is relatively simply. If you are a felon and you have a gun in your pocket, then you are committing a Violation of the Uniform Firearms Act. If the police arrest you and find the gun in your pocket, then they can properly charge you with a weapons offense. In that type of case, the main defense to a gun charge would usually be a motion to suppress – if the police stopped and searched you illegally, then the evidence could be excluded and the case dismissed. But because the gun was in your pocket, it is pretty clear to whom the gun belonged at the time the police stopped you, and you would have been in physical possession of the gun. That is not to say you will automatically be convicted if you lose a motion to suppress. However, any defenses other than a motion to suppress would likely focus on whether the police officers are telling the truth instead of whether you were legally in possession of the gun.

Can I be convicted if the gun wasn’t on me?

Constructive possession, on the other hand, could apply when the gun or drugs are not actually in your pocket, waistband, or somewhere else on your person. For example, it may apply when contraband is found in a car or a house or when drugs are stored in a stash somewhere near where someone is selling them. In that case, the prosecution may still be able to obtain a conviction for drug possession if the prosecution can prove that you constructively possessed the drugs.

How can I be charged with possession if I didn’t have the drugs on me?  

In order to establish constructive possession, the government must prove something more than the defendant’s mere presence near the item in question. In addition, the government must show that the defendant had both the intent and the power to control the contraband. Obviously, where the defendant is found near drugs, the defendant probably had the power to control them because the defendant could have easily walked over and picked them up. However, that alone does not make them the defendant’s drugs. If other people have access to that area, then the drugs could belong to those other people. It may not have been a great idea to hang around in the area where they were stored, but that does not make them the defendant’s. Instead, the prosecution must also show that the defendant had the intent to control the drugs. This intent element is what makes constructive possession difficult to prove.

How does the prosecution prove constructive possession?

In determining whether the prosecution has proven the intent necessary to show constructive possession, courts will look at the totality of the circumstances. This means they will look at things like how close the object is to the defendant, whether the defendant makes any statements, whether police observed the defendant making quick movements which suggest the defendant was trying to hide the object, and whether the defendant displays consciousness of guilt such as nervousness or flight. The degree to which the contraband was visible will also be relevant, and a court will also likely consider whether the prosecution can connect the defendant to the area from which the drug or gun was recovered by police.

Thus, if the defendant was the owner and operator of a car from which the police recovered a gun, a court is more likely to find that the defendant knew about and owned the gun than if the defendant was merely borrowing the car from the friend. However, the defendant's mere ownership of the vehicle or police finding paperwork connecting a defendant to a house do not automatically establish constructive possession because the passenger could have brought the gun into the car and tried to hide it when the police pulled the vehicle over. Instead, the court must look at the totality of the circumstances. This means that there are cases in which illegal drugs and guns are found in cars or houses and it is simply not possible for the government to prove to whom those items belonged.

The constructive possession doctrine protects innocent people from being convicted of possessory offenses merely based on their proximity to the contraband. If I am watching television in my living room and my friend puts his bong on the table, then I cannot necessarily be convicted of drug paraphernalia just because my friend left the bong there. At the same time, it is fairly easy for police to try to use the doctrine against a given defendant by testifying to factors such as nervousness, furtive movements, and incriminating statements which simply may not have existed. In cases where police find a gun in a car, they are under a lot of pressure to charge someone with the gun and testify in such a way that it will lead to a conviction. Therefore, it is extremely common to see constructive possession cases where the police testimony will attempt to establish circumstances which suggest that one of the occupants of the vehicle must have been the owner of the contraband. However, in order for a defendant to be convicted, the judge or jury must believe beyond a reasonable doubt that the defendant constructively possessed the item in question, and vague reaching movements or nervous behavior simply may not be enough. Our criminal lawyers excel at cross examining police witnesses in preliminary hearings, pre-trial motions to suppress, and at trial, and we will use our skills to fight allegations of constructive possession. 

Philadelphia Criminal Defense Lawyers for Drug and Gun Cases

Your best bet is to stay away from things that are illegal. If you are on probation or parole, or you have a record which disqualifies you from possessing a firearm, it is risky to be around drugs or a gun. Even if they do not belong to you, the police may charge you under a constructive possession theory. You may be able to sort everything out in court, but the criminal justice system is often unpredictable. Fortunately, if you are charged with a crime, with very few exceptions, you have the right to a jury trial at which the government must prove to twelve jurors that you committed the crime charged beyond a reasonable doubt. If you are facing criminal charges or believe you may be under investigation for a crime, you should speak with one of our award-winning Philadelphia criminal defense lawyers immediately. We will be able to evaluate whether constructive possession could be a defense to your charges. We offer a free, 15-minute criminal defense strategy session. Call 267-225-2545 to speak with a defense attorney today.

When can police conduct an inventory search of my car?

Police Often Need Search Warrants

As a general rule, police officers need a warrant to conduct a search of a person or a place. However, there are a number of exceptions to the warrant requirement, and one of them is the automobile exception. When the police want to search a car, they do not have to get a warrant. Instead, under both Pennsylvania and Federal case law, police officers need only probable cause to search a vehicle. Probable cause is the same standard which would be required for a magistrate or judge to issue a search warrant, but the police are not required to swear out an affidavit of probable cause and get a judicial officer to sign off on a search of a vehicle prior to conducting the search.

What Is Probable Cause?

Probable cause means that it is more likely than not that evidence of a crime will be found as a result of a search. For example, police officers will frequently claim that they smelled an odor of marijuana coming from a vehicle and therefore had probable cause to search the car. Under the government’s theory, the fact that the car smells like marijuana makes it more likely than not that marijuana will be found in the car if the police conduct a search, and therefore the police may search the car. If that search turns up a gun, drugs, or some other kind of contraband, then the prosecutor will argue that the search was justified because of the initial smell of marijuana. Of course, when the police claim they searched the car because of the smell of marijuana and then do not actually find any marijuana, it may be possible to challenge the search by filing a motion to suppress and arguing that the police testimony is not credible.

Other Exceptions to the Warrant Requirement

There are other ways that police officers will try to justify a car search. When police stop a car and have a vague hunch but are lacking in probable cause, they may attempt to use a traffic violation or motor vehicle code violation as the basis for the search by having the car towed so that they can do an inventory search. For example, if the police pull over a car with an expired registration, they may decide to tow the car instead of simply parking it on the side of the road so that they can conduct an inventory search of the vehicle. If they find some kind of contraband as a result of the inventory search, then they may bring criminal charges against the owner or operator of the car and argue that the inventory search exception to the warrant requirement justified the search and eliminated their need to obtain probable cause in a warrant. However, many of these decisions to tow and search cars are pretextual.

Limits on Police Inventory Searches of Cars

Fortunately, the Pennsylvania Supreme Court has held that the police may not tow a car and conduct an inventory search simply because the owner or operator has committed a motor vehicle code violation which prevents the car from legally driving on the streets. This means that the police may not tow a car and conduct an inventory search due solely to the fact that a car has an expired registration, lacks insurance, or has some other physical or regulatory defect. Instead, the Pennsylvania Supreme Court has held that in order to tow a car, the police must be able to show that immobilizing the car and leaving it where it was parked would pose some kind of threat to public safety.  

Commonwealth v. Laganella

In Commonwealth v. Laganella, Harrisburg police pulled the defendant over for pulling into traffic without using a turn signal. Upon pulling the car over, the police officer learned that the vehicle was missing its emissions inspection sticker and that the defendant’s license had been suspended. Instead of simply issuing a ticket, the officer informed the defendant that the officer would have to tow the car. The defendant stated that there was no need for the car to be towed and that he could have a friend, who was a tow truck driver, pick the car up. Nonetheless, pursuant to department policy, the officer called a tow truck and searched the car, eventually finding drugs and a shotgun. The defendant, who had a prior felony conviction, was then charged with drug and gun charges, including VUFA Sec. 6105 (felon in possession of a firearm). After the trial court refused to suppress the gun, the defendant was convicted and sentenced to three to ten years in prison.

The Pennsylvania Supreme Court ultimately reversed the trial court’s decision. The Court recognized that Pennsylvania law gives a police officer two options when the officer stops a vehicle operated by a driver whose license has been suspended: the officer may either immobilize the vehicle or tow the vehicle. If the officer is permitted to tow the vehicle, then the police may conduct an inventory search not for the purpose of finding contraband, but for securing the operator’s belongings for the benefit of both the operator and the police. However, Pennsylvania law provides that the officer may only tow the car when the vehicle poses public safety concerns warranting its towing and storage at an impound lot. Thus, if the vehicle can be safely parked or privately towed, then the vehicle will not pose public safety concerns which would warrant its towing. Further, when the police do tow a vehicle and conduct an inventory search, they must do so pursuant to a reasonable, standard policy of securing and inventorying the contents of a vehicle. The requirement that police have a standardized policy seeks to prevent police from using their ability to conduct an inventory search as a pretext.

In an earlier decision, the Pennsylvania Superior Court had held that the police may conduct an inventory search regardless of whether they choose to merely immobilize the vehicle or actually tow it. However, in Laganella, the Pennsylvania Supreme Court rejected this rule and held that police may only conduct an inventory search when they tow the vehicle. Because police may only tow the vehicle when there is a public safety concern, this creates a real limit on the ability of police to pretextually call a tow truck and conduct an inventory search. Thus, when the vehicle cannot be operated solely because the driver does not have a license or because the vehicle is missing its registration or insurance, the police may not tow the vehicle if the vehicle can be safely parked in the area where it was pulled over.  

We Can Help With Criminal Charges in Pennsylvania and New Jersey

If you are facing criminal charges in Pennsylvania or New Jersey, we can help. We understand what you're going through, and we will use our skill and experience to get you through this. The Philadelphia criminal defense lawyers of Goldstein Mehta LLC will fight for your rights at trial or on appeal. Our attorneys have successfully defended thousands of cases in Philadelphia and the surrounding counties, and we can help with all types of state and federal charges in Pennsylvania and New Jersey. If you believe the police may have illegally searched you or your car and found some kind of contraband, we may be able to file a motion to suppress. Call 267-225-2545 for a free criminal defense strategy session with one of our award-winning criminal defense lawyers.

Do Police Need A Warrant To Search A Hotel Room?

Police Searches of Hotel Rooms and Other Rented Spaces

Under the United States and Pennsylvania Constitutions, law enforcement officers need a search warrant anytime they want to search a suspect's private residence with few exceptions. If the police do not obtain a warrant prior to conducting the search of a home, then the owner of the home and any guests who are staying there could potentially have any incriminating evidence which was found in the search suppressed and excluded from trial. This same basic rule requiring police to get a search warrant also applies when police want to search a hotel room. If you are a guest in a hotel, the police cannot search your room without a search warrant. Unfortunately for the defendant in Commonwealth v. Williams, the Superior Court held that the defendant has the burden at the Motion to Suppress hearing of showing that the defendant actually rented or was staying in the hotel room.  

Commonwealth v. Williams

In Williams, the defendant was charged with three counts of Possession with the Intent to Deliver, possession of drug paraphernalia, and two counts of possession of a controlled substance. The defendant moved to suppress the evidence because police searched the hotel room in which the drugs were recovered without a search warrant. At the motions hearing, the prosecution established that police officers in Erie, Pennsylvania responded to a 911 call for a shooting on March 18, 2016 at the defendant's home. Once there, police found a dead pit bull, lots of blood, and a man who had been shot in the leg and face. Police did not find any other victims or the shooter, so they began interviewing the neighbors. One neighbor informed police that the defendant lived in the first floor apartment at that location, and he had seen one of the defendant's vehicles leaving the area around the time of the shooting. The officer looked in the window of the apartment and did not see anyone home, so he radioed for the car to be stopped. 

Other officers stopped the defendant in the car which the neighbor had seen. Once stopped, the defendant told police that he had been staying in a nearby a hotel with a friend because of ongoing domestic issues with his girlfriend. He showed the officer a key card for a hotel room, and he told the officer that the key was for room 111. He also told the officer that he was in room 111 at the time of the shooting.

Following this conversation, officers removed the defendant from the vehicle and frisked him. They also frisked the passenger and recovered a gun. At some point, after the conversation had occurred, officers also searched the car for weapons, and during this search, they found that the defendant had taken the hotel key card from his wallet and discarded it in the vehicle. Williams had apparently dropped the card between the driver's side seat and the center console of the vehicle, so the police took it. 

Based on this information, an officer went to room 111 and knocked on the door. When no one answered, the officer went to the front desk and spoke with hotel management. Management informed the officer that the key card was not for room 111 and that the card was actually for room 231. However, the employee did not know who had actually rented room 231. Further, the employee stated that the hotel did not have surveillance footage which would show who had rented the room. 

Apparently concerned that another shooting victim might be in room 231, the officer went and knocked on the door for that room. When no one answered, the officer decided that it was an emergency. Instead of waiting for a search warrant, he used the key card and opened the door. The officer immediately smelled marijuana and found drugs and drug paraphernalia in the room. He did a quick check of the room for shooting victims, and then he obtained a search warrant to recover the drugs and paraphernalia. 

For reasons which are not explained in the Court's opinion, the defense did not challenge the stop and search of the defendant's vehicle or subsequent seizure of the room key. Instead, the defense argued that the drugs in the hotel room should be suppressed because the police were required to obtain a search warrant prior to entering the room. The Commonwealth responded with two arguments. First, the Commonwealth aruged that the defendant failed to establish that Williams had a reasonable expectation of privacy in the hotel room because there was insufficient evidence to show that he had rented or was staying in the room. Second, the Commonwealth argued that the exigent circumstances surrounding the shooting justified the police decision to enter the room without a search warrant because there could have been another victim who needed medical assistance in the hotel room.  

The Exigent Circumstances Exception to the Warrant Requirement

The exigent circumstances doctrine permits law enforcement to enter a house without a warrant during a true emergency. If police reasonably believe that someone is dying inside a home, then the police do not have to wait for a search warrant before entering the home and rendering aid. Of course, if they find something incriminating in plain view during their attempts to render aid, then that evidence wil be admissible at trial. This issue often comes up in cases involving burglary alarms. If a burglary alarm goes off and police do not find anyone at the scene when they arrive to investigate, they may decide to enter the home without a warrant and check for burglars. If they find your drugs and guns inside the house while looking for burglars, it will often be difficult to have that evidence suppressed despite the absence of a search warrant. 

The trial court agreed with the defense and granted the Motion to Suppress. The trial court found that police were required to obtain a search warrant prior to entering the hotel room because a guest in a hotel room has a reasonable expectation of privacy in the room. Further, the court found that the exigent circusmtances exception to the warrant requirement did not apply as police had no real basis for believing another shooting victim to be in the room. Therefore, the court found that even though the drugs were in plain view once police entered the room, the drugs should be suppressed because police only saw the drugs because they illegally entered the room without a search warrant. 

The Superior Court disagreed and reversed the Order granting the Motion to Suppress. The Court found that the defendant failed to establish that he had a reasonable expectation of privacy in the hotel room. The defendant presented no witnesses, so the Commonwealth's evidence was essentially uncontradicted. Under Pennsylvania law, a defendant who is charged with a possessory offense like Possession of a Controlled Substance has automatic standing; this means that the defendant may always move for the suppression of the items sized. However, in addition to having standing, a defendant who moves to suppress evidence must also have had a reasonable expectation of privacy which was violated by some sort of law enforcement action. If the defendant did not have a reasonable expectation of privacy in the place searched, then it does not matter if the police followed the rules. For example, if the police illegally search your house and find evidence which they wish to use against me, then I would not be able to successfully have the evidence suppressed because I did not have a reasonable expectation of privacy in your house. If they wanted to use the evidence against you, you would be able to win a Motion to Suppress because it was your house, but I would be out of luck. 

What is a reasonable expectation of privacy? 

The Court noted that a reasonable expectation of privacy exists when an individual exhibits an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. Courts must evaluate the totality of the circumstances in deciding whether a defendant had a reasonable expectation of privacy, and the test does not depend solely on the subjective intent or belief of the defendant. Further, prior case law established that although it is the Commonwealth's burden to prove that evidence was obtained legally at a Motion to Suppress hearing, the burden remains on the defendant to show a reasonable expectation of privacy. 

Do the Police Need a Warrant to Search a Hotel Room? 

Pennsylvania law is very clear that a hotel room deserves just as much protection as a private home or office. A registered hotel guest enjoys a legitimate expectation of privacy in a hotel room during the period of time in which the room rental remains valid. However, the expectation ceases to be reasonable after the rental period has ended and/or the guest's right to occupancy has lapsed. A person also does not have a reasonable expectation of privacy in a room in which they are not staying.

Here, the defendant would have been in much better shape for the Motion to Suppress had he testified that he rented that particular hotel room and believed it to be private. However, he did not do so. Instead, he told police that he was staying in a different hotel room, and he actually tried to discard the key to the room. Further, when police spoke with hotel employees, they were told that the hotel did not know who had rented the room and also did not have any video surveillance which would show defendant staying in that room. Accordingly, the only evidence in the record was that defendant had a key to a room in which he did not admit to staying. Therefore, the Superior Court found that the defendant failed to establish that it was his room and correspondingly that he had a reasonable expectation of privacy in the room. Police were not required to obtain a warrant prior to the search, so the Court did not even reach the issue of whether emergency circumstances justified the warrantless search. 

The Williams opinion, although intellectually dishonest, illustrates the dangers of relying on the Commonwealth's evidence to establish a reasonable expectation of privacy and constitutional violation on the part of law enforcement. It also shows how unforgiving Pennsylvania's reasonable expectation of privacy doctrine can be compared to New Jersey's much more relaxed standard. Of course, it is obvious from the record that the room had been rented by Williams. A court could have easily inferred, as the trial court did, that it was his room. He had the key, he lied about which room he had rented because he knew there were lots of drugs in it, and the police only searched it because they believed it was connected to him. Indeed, if the prosecution did not believe that it was his room, then they would not have charged him with Possession. It is a certainty that the prosecution will not be withdrawing the charges despite arguing that it was not Williams' room on appeal. 

The Pros and Cons of Testifying as a Defendant in a Criminal Case

Nonetheless, once Williams claimed to have been staying in a different room, he probably needed to testify at the Motion to Suppress hearing in order to establish that it was his room. If he had testified  that it was his room, then the Court would not have been able to find that he did not have a reasonable expectation of privacy therein. There is often a great deal of reluctance to call criminal defendants to testify for fear that they will say something incriminating or open the door to some other type of incriminating evidence which would have been otherwise inadmissible. Additionally, if the defendant has prior convictions for certain crimes of dishonesty (burglary, robbery, theft, etc.), then the fact of those convictions may become admissible when the defendant testifies. However, in some cases, it is simply necessary. Here, Williams likely should have testified that it was his room. This is particularly true because the defendant's testimony during a Motion to Suppress hearing may not be used against the defendant at trial even if the Motion is denied unless the defendant testifies to something inconsistent at trial. Therefore, Williams had little to lose by conclusively establishing that it was his room.

Philadelphia Criminal Lawyers Demetra Mehta and Zak T. Goldstein

Award-Winning Philadelphia Criminal Defense Lawyers

As always, if you are facing criminal charges, we can help. Our Philadelphia Criminal Defense Lawyers have won motions to suppress drugs, guns, and other contraband in cases involving car searches, house searches, and searches of hotel rooms. We can help at both the trial and appellate level. Call 267-225-2545 for a free criminal defense strategy session.  

PA Supreme Court Limits Application of Designer Drug Statute

What Is A Designer Drug?

Designer drugs present a difficult issue for the criminal justice system and law enforcement. In general, the idea of a designer drug is not that difficult to understand. A designer drug is some type of substance that is designed to mimic the effects of an already-regulated controlled substance but altered in an attempt to avoid regulation and criminal liability. Setting aside the pros and cons of the war on drugs, it makes sense that if the government is going to criminalize marijuana, then the government would also attempt to criminalize synthetic substances like K2 that provide the same effect of marijuana despite having a different chemical structure.

Problems with Criminalizing Designer Drugs

In practice, the issue becomes much trickier. It is very difficult for the government to craft a legal definition in a statute prohibiting designer drugs which gives fair notice to the average person as to exactly what substances are illegal or regulated. There will always be questions: For example, how similar does the substance have to be? Does the similarity apply only to the effect of the substance, or does the similarity apply to the chemical structure? If it applies to the chemical structure, how can an ordinary person be expected to know the exact chemical structure of a drug, and how do we compare substances?  And if it applies to the effect of the drug, then how do you measure effect given that drugs have different effects on different people. Accordingly, designer drug prosecutions often involve challenges to the statute itself as well as conflicting expert testimony from the prosecution and defense as to whether the substance involved qualifies as a designer drug. 

The Pennsylvania Supreme Court has just dismissed a void-for-vagueness challenge to the Pennsylvania statute which criminalizes the possession and distribution of “designer” drugs. Despite upholding the constitutionality of the statute, however, the Court has dramatically limited its application by reading in an extremely heightened mens rea requirement for designer drug prosecutions. In Commonwealth v. Herman, the Court held that although a previous version of the statute which criminalized “analogues” of controlled substances was unconstitutionally vague, the current definition of a “designer drug” is not so vague as to render the statute unlawful. Nonetheless, the statute requires that the defendant actually know that the substance involved was a designer drug and not just that the defendant possessed the substance itself.  

The Pennsylvania Designer Drug Statute

The designer drug statute prohibits the “knowing or intentional . . . possession with intent to distribute, or possession, of a designer drug.” It defines a designer drug “as a substance other than a controlled substance that is intended for human consumption and that . . . has a chemical structure substantially similar to that of a controlled substance in Schedules I, II, or III . . . or that produces an effect substantially similar to that of a controlled substance in Schedule I, II, or III.”

In Herman, the defendant owned and operated a smoke shop in York County, PA. Undercover police officers entered the store and purchased alleged designer drugs labeled “Winter Haze” and “V-8 Air Freshener.” Upon testing the substances, the prosecution determined that they contained the chemical PB-22, which prosecutors alleged was either a controlled substance or a designer drug which was substantially similar to a controlled substance and synthetic cannabinoid (synthetic marijuana) called JWH-018. Accordingly, the Commonwealth charged the defendant with three counts of delivery of a controlled substance, one count of possession with the intent to deliver a controlled substance, and one count of possession or possession with intent to distribute a designer drug.

Void-For-Vagueness

After the defendant was held for court at the preliminary hearing, the defendant filed a Petition for Writ of Habeas Corpus asking the trial judge in the Court of Common Pleas to dismiss the drug charges. The defense argued that the statute was so vague that it made it impossible for an ordinary person to know exactly what the law prohibits. Although much of the case dealt with various definitions under a previous version of the statute, the prosecution also involved the current definition of a designer drug. With respect to the designer drug charge, the defense argued that the Commonwealth failed to offer any evidence that PB-22 had a chemical structure similar to that of JWH-018 and that the Commonwealth’s evidence showed only that the physiological and toxicological properties of PB-22 were unknown. Therefore, the Commonwealth could not show that the compounds were substantially similar in either chemical form or effect.   

The Pennsylvania Supreme Court rejected the defendant’s void-for-vagueness challenge with respect to the designer drug charge. Under the void-for-vagueness doctrine, the government may not impose sanctions under a criminal law that fails to give fair notice of the proscribed conduct. The doctrine safeguards against arbitrary or discriminatory enforcement by the government, and it prevents jury verdicts unfettered by any legally fixed standards as to what is prohibited by the statute. The Court noted that the inquiry into whether a statute is void-for-vagueness focuses on whether the law forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.

Although the trial court found the statute to be unconstitutionally vague, the Supreme Court reversed the lower court's ruling. The Court found that the “substantially similar” language used in the statute was not unusual or unduly vague and noted that such language has been upheld repeatedly both by federal courts and appellate courts in other states. Although the prosecution and defense experts differed as to the ultimate issue of whether the substances were in fact substantially similar, the issue of which expert was right was an issue for the jury. It was not a basis for finding that the statute violates due process. 

Possession of a Designer Drug Must Be Knowing and Intentional

Despite deciding to uphold the statute, the Court did have significant concerns about the difficulty in determining whether a substance actually qualifies as a designer drug. Accordingly, the Court emphasized the mens rea element of the crime. The act requires that a defendant possess the drug knowingly or intentionally. Therefore, the Court suggested that the defendant must know not only that he possesses the substance, but also that the substance is in fact a designer drug. Thus, the Court suggested that in order to obtain a conviction, the Commonwealth must show that the defendant knew the chemical he possessed had a molecular structure or effect substantially similar to that of a scheduled controlled substance. This mens rea requirement would prevent the statute from becoming a "trap for unwitting members of the public who have no expertise in organic chemistry."

Instead, the Court found that the statute is quite reasonably aimed at those who traffic in novel compounds which are essentially the same as scheduled controlled substances but contain minor differences designed to evade the statutory schedules. Thus, the Court concluded that the General Assembly can “reasonably expect and require persons engaged in that activity to possess or obtain the specialized knowledge needed to conform their conduct to law.”

Although the Court upheld the constitutionality of the statute, the narrowing of the mens rea requirement would seemingly make it very difficult for the prosecution to obtain a conviction in most cases. Now, the Commonwealth must show more than the mere possession of a substance that qualifies as a designer drug by a defendant. Instead, the Commonwealth must show that the defendant actually knew that the substance would qualify as a designer drug. This will make it possible to prosecute the manufacturers and regular distributors of such substances, but the average person or small store-owner who possesses a designer drug may be able to avoid liability unless the Commonwealth can show an actual admission or incriminating statement on their part. Thus, the statute remains in effect, but its application has been substantially narrowed by the Court. 

We Can Help With Designer Drug Charges

Goldstein Mehta LLC Criminal Lawyers | Philadelphia, PA

If you are facing designer drug charges or any other criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning defense attorneys have successfully defended thousands of criminal cases. Designer drug cases are more complicated than regular possession cases and may require the use and cross-examination of expert witnesses. We have the experience and skill to fight for you and help you get the best possible result. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today.