A potent stimulant known as cocaine is derived from the leaves of the South American coca plant. Under federal law and the law of all fifty states, possession of any amount of cocaine is a crime. And, crack cocaine (a form of cocaine that is processed even further than powder cocaine to achieve a cheaper version) carries heavier penalties under federal and some state laws. For more information on state laws dealing with cocaine possession, see Drug Possession Laws.
For more information on penalties for crack cocaine, see Crack Cocaine vrs. Powder Cocaine: One Drug, Two Penalties.
What is Cocaine?
Federal law includes cocaine in its list of “narcotic drugs” that cannot be possessed, manufactured, and distributed in the U.S. (21 USC § 802.) The law is broadly worded to encompass any derivative of or extract from coca leaves. In fact, the law includes coca leaves themselves as among the “narcotic” cocaine drugs listed.
In many areas of the Andes Mountains (and elsewhere in Peru, Ecuador, and other South American countries), people chew raw, fresh coca leaves for a mild mood and energy enhancement. Such leaf consumption would be treated as illegal cocaine use and possession under U.S. law.
What is “Possession?"
While we are all familiar with the colloquial definition of the word “possession” (meaning having, owning, or controlling), the term has a different meaning under the law.
A person illegally possesses cocaine if he or she knowingly has cocaine on his or her person (such as in a pocket) or under his or her personal, physical control (for example, in a purse). Knowingly means that the person with the cocaine knew that he or she had the drug on them and knew it was illegal. So, if someone takes a box labeled baking soda and has no knowledge or reason to know that the box actually contains cocaine, that person does not knowingly possess cocaine (but we wish them luck in convincing a prosecutor of this ignorance!) This is the simplest, most obvious form of possession.
But the definition of possession does not stop here when it comes to illegal narcotic drugs such as cocaine.
Under U.S. law, a person may be charged with “constructive possession” of cocaine and other controlled substances. “Constructive” used in this way means implied, inferred, or as interpreted by the law. So, a person has constructive possession of cocaine in situations in which the law interprets him or her to have legal control over the drug. This definition is much broader than actual physical control and covers a lot of ground. In the most obvious situation, when a customs agent finds cocaine in a suitcase belonging to an individual, that individual could be charged with constructive possession of narcotics. In a much less obvious situation, the discovery of cocaine under shrubbery beside which an individual had parked his vehicle led to a charge of constructive possession against the vehicle owner. Authorities have charged individuals with constructive possession of cocaine where the drug was found in:
- a home, vehicle, business, or other property owned or rented by the individual
- a hotel room in which the individual was a guest
- a social club managed by the individual
- a warehouse used by the individual, and
- a parcel addressed to the individual.
In order for a defendant to be convicted of constructive possession of cocaine, the prosecutor must prove that the defendant had the power and intent to control the substance, and knowledge that the substance was cocaine.
At times, it is enough that an individual is closely associated with another person who possesses cocaine to establish constructive possession by the first person. For example, an individual could be charged with constructive possession for cocaine found in the purse of a passenger in his or her car, or for cocaine found in the home of another person with whom the defendant was closely associated if a plan to jointly possess the drug can be shown.
Common Defenses to Cocaine Possession
There are several defenses to simple and constructive possession of cocaine. Here are a few of them.
Lack of Knowledge
In the example given above of the person possessing a box of cocaine that she believes to be baking soda, she will be acquitted if she can show that she genuinely and reasonably believed that the box did not contain cocaine. However, the circumstances of the cocaine coming into the person’s hands will be key to this inquiry. Where a woman accepts a box of “baking soda” from her boyfriend whom she knows to be a drug dealer, her explanation will look less credible than if she pulls the box off a shelf in a friend’s house intending to bake some bread.
In the movie “Pulp Fiction,” Uma Thurman’s character, wearing the coat belonging to John Travolta’s character, could have argued lack of knowledge of the baggie of heroin in the pocket—that is, she could have made that argument before she pulled the drug out of the pocket and snorted it. (Of course, she thought it was cocaine, but arguing lack of knowledge of possession of one illegal narcotic based on the sincere belief that it was a different illegal narcotic is not a winning defense strategy.)
Lack of Power and intent to control
For the government to prove constructive possession, it must show that the defendant intended to control the cocaine even if it wasn’t in his actual physical possession. If the defendant can show that he had no intent to control the drug, he may be acquitted. Where a person is given a bag of cocaine and told to hide it for the dealer or else face the consequences, that person lacks power and intent to control the cocaine placed in his or her hands.
How is Cocaine Possession Punished?
Under federal law, a person with no prior conviction (in federal or state court) of possession of any narcotic who is convicted of a first offense of cocaine possession may be sentenced to not more than one year in prison, fined not less than $1,000, or both. A person convicted of cocaine possession after a prior conviction of possession of cocaine or any other narcotic in either federal or state court may be sentenced to not less than 15 days and not more than two years in prison, fined not less than $2,500, or both. Two or more prior convictions of possession of any narcotic in federal or state court may lead to a sentence of not less than 90 days in prison, a fine of not less than $5,000, or both. The term of imprisonment and the amount of the fine may be affected by the quantity of the drug seized. A charge of possession with intent to distribute (sell) cocaine greatly increases the penalties.
Cocaine possession may also be punished by the states. For more information on possession of illegal drugs, including state-specific articles, begin with Drug Laws and Drug Charges.
As noted above, the penalties for crack cocaine possession may be greater than for powder cocaine.
See a Lawyer
Cocaine possession is a serious crime. If you have been investigated for or charged with the crime, you should see a lawyer immediately. Only an experienced criminal defense lawyer who is familiar with the law in your state (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you as to the strength of the case against you and the availability of any defenses. And only a local lawyer who knows the prosecutors and judges in your courthouse can give you a realistic assessment on how the case is likely to proceed.