Heroin Possession: Charges, Penalties and Defense

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When Dorothy and her friends on the way to Oz fell under a sleeping spell in a field of poppies, opium was still legal in the U.S. Dorothy’s creator, L. Frank Baum, may have invoked the narcotic effects of opium poppies in this scene.

Heroin was first synthesized from the opium poppy in the late 19th century and the drug maker Bayer later marketed heroin as an pain-reliever and cough suppressant. In 1914, the U.S. enacted the first law placing restrictions on heroin use and distribution. Now, under federal law and the laws of all fifty states, heroin possession is a crime.

For more information on state laws dealing with heroin possession, see Drug Laws & Drug Charges.

What is Heroin?

Heroin, morphine, and opium are all derivatives of the opium poppy. All three are controlled substances under federal law, although physicians may legally prescribe morphine for pain control. “Heroin” is the name given to the opiate that is used illegally and recreationally, and is usually found in powder form that is either snorted or dissolved in water and injected. Heroin acts on the user by converting to morphine in the body after ingestion. In contrast to the medicinal opiate morphine, possession, manufacture, and distribution of any amount of heroin for any purpose is illegal in the U.S. (21 USC § 802.)

What is “Possession”?

As commonly understood, “possession” means having, owning, or controlling a thing. However, the term has a broader meaning under the drug laws.

“Simple” possession

Where a person knowingly has heroin on his or her person (for example, in a pocket) or under his or her personal, physical control (for example, in a duffle bag one is carrying), he or she has possession of heroin under the law. “Knowingly” is defined as awareness by the person with the heroin that he or she had the drug on them and that it was illegal. For example, a person who takes a friend’s gym bag for them, assuming it contains sweaty clothes, and who is then arrested for possession of the actual contents of the bag—heroin—may be able to escape punishment because of lack of knowledge.

Possession is not limited to simple, obvious physical control when it comes to illegal narcotic drugs such as heroin.

“Constructive possession”

A person also may be charged with “constructive possession” of heroin and other controlled substances under U.S. law. “Constructive,” as used in federal drug statutes, means implied, inferred, or as interpreted by the law. So, where the law interprets that a person has legal control over heroin, he or she is deemed to have constructive possession of the drug.

Constructive possession is much broader than actual physical control and includes many situations, some of which are surprising. It may seem fairly obvious that an individual who checks a suitcase containing heroin at the airport will be arrested when a customs agent finds the drugs, and will likely be charged with constructive possession of narcotics. Courts have upheld constructive possession convictions in much less obvious situations, so long as the prosecution establishes that the defendant was knowingly in a position to exercise dominion and control over the drug (or had the right to do so). That is, the prosecutor must prove that the defendant had the power and intent to control the substance, and knowledge that the substance was heroin.

Courts have also upheld constructive possession convictions where narcotics were found in a:

  • home, vehicle, business, or other property owned or rented by the individual
  • hotel room in which the individual was a guest
  • social club managed by the individual
  • warehouse used by the individual, and
  • parcel addressed to the individual.

Close association by a defendant charged with constructive possession with another person who possesses heroin may be enough to establish constructive possession by the defendant. For example, an individual driving a car could be charged with constructive possession for heroin found in a passenger’s purse.

Common Defenses to Heroin Possession

Here are a few of the defenses available to a person charged with simple and constructive possession of heroin.

Lack of knowledge

In the example of the person who took a friend’s gym bag containing heroin (believing it contained only gym clothes), she will be acquitted if she can convince the jury that she genuinely and reasonably had no knowledge that the bag contained heroin. However, the circumstances of how she came into possession of the heroin will be pivotal to her ability to succeed on the lack of knowledge defense. Where a woman accepts a gym bag stuffed with heavy “gym clothes” from her workout buddy whom she knows to be a drug dealer, her explanation will look less credible than if she had agreed to carry a stranger’s bag to his car for him with no knowledge of the stranger’s illegal activities.

Lack of power and intent to control

A prosecutor must prove that the defendant intended to control the heroin even if it wasn’t in his actual physical possession in order to establish constructive possession. A defendant who can show that he had no power or intent to control the drug may be acquitted. For example, a hitchhiker who accepts a ride with someone who, after picking up the hitchhiker, stops off at a corner and buys a bag of heroin lacks power and intent to control the heroin placed in his vicinity. Even though the hitchhiker was aware of the presence of heroin in the car, he never intended to come into possession of it, had no power or control over it, and indeed might have faced dire consequences if he tried to take possession of it.

How is Heroin Possession Punished?

Possession of heroin is both a federal and a state offense.

Federal offenses

When heroin possession is charged as a federal offense in federal court, a person who is convicted of a first offense of heroin possession, who has no prior convictions of possession of any narcotic (be they in federal or state court), may be sentenced to not more than one year in prison, fined not less than $1,000, or both.

A person convicted of heroin possession after a prior conviction of possession of that 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) heroin greatly increases the penalties.

State offenses

States also punish the possession of heroin, and the sentence will vary according to state law. For information on your state's punishment scheme for possession of illegal drugs, see Drug Possession Laws by State at Drug Laws & Drug Charges.

See a Lawyer

Heroin 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.

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