Cocaine Possession

Cocaine is a powdery, potent stimulant derived from the leaves of the South American coca plant. Under federal law and the law of all states, possession of any amount of cocaine without a prescription is a crime. Possessing crack cocaine (a form of cocaine that is processed even further than powder cocaine, to achieve a cheaper version) carries stiffer penalties under federal and some state laws.

What Is Cocaine?

Cocaine comes from coca leaves grown in Bolivia, Peru, and Colombia. In many areas of the Andes Mountains (and elsewhere in South American countries), people chew raw, fresh coca leaves for a mild mood and energy enhancement. Cocaine also has quick numbing abilities and is sometimes—although rarely—used as a local anesthetic for nasal surgeries.

Illicit cocaine comes in powder and rock form. Powdered cocaine can be snorted or injected into the veins. Cocaine base—called crack—is smoked. Cocaine users experience a euphoric rush, increased alertness, restlessness, and anxiousness—and then a crash. The drug is highly addictive and users quickly develop a tolerance to the drug's effects, causing the user to need higher and higher doses to get the same effect.

Health effects from cocaine include heart conditions, sudden cardiac arrest, convulsions, strokes, and death. A user may also experience increased blood pressure, insomnia, and loss of appetite.

Is Cocaine Illegal?

Cocaine is illegal under federal and state laws. Federal law includes cocaine in its list of Schedule II narcotic drugs that have a high potential for abuse and dependency and limited accepted medical use. The Controlled Substances Act 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. Many state laws have a similar definition to federal law.

(21 U.S.C. § 802 (2024).)

Possession of Cocaine

While we are all familiar with the colloquial definition of "possession" (meaning having, owning, or controlling), the term has a different legal meaning.

Simple Possession

A person illegally possesses cocaine if they knowingly have cocaine on their person (such as in a pocket) or under their personal, physical control (for example, in a purse). Knowingly means that the person with the cocaine knew that they 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. This is the simplest, most obvious form of possession.

Constructive Possession

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 them as having 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.

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's 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 their 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.

Federal Penalties for Possession of Cocaine

Federal penalties for cocaine possession increase from a misdemeanor to a felony when a defendant is a repeat drug offender.

First conviction. A person with no prior federal or state drug convictions who is convicted of a first offense for cocaine possession may be sentenced to not more than one year in prison, fined not less than $1,000, or both.

Second conviction. A person convicted of cocaine possession after a prior drug conviction in either federal or state court may be sentenced to not less than 15 days and not more than 2 years in prison, fined not less than $2,500, or both.

Third and subsequent convictions. A person will face 90 days to 3 years of prison time and a minimum $5,000 fine if convicted of cocaine possession after having two or more prior drug convictions.

A charge of possession with intent to distribute (sell) cocaine greatly increases the penalties.

(21 U.S.C. §§ 841, 844 (2024).)

State Penalties for Possession of Cocaine

State penalties for cocaine possession vary greatly. Some states punish simple drug possession for personal use the same regardless of the type of drug involved. However many states single out highly addictive and dangerous drugs for harsher penalties, including cocaine. Below are some examples.

Idaho imposes a potential 7-year felony sentence for possession of Schedule I narcotics and Schedule II drugs (cocaine) and misdemeanor penalties for most other drug possession convictions. (Idaho Code §§ 37-2732, 37-2734A (2024).)

New Mexico makes possession of narcotics in Schedule I and II, including cocaine, a fourth-degree felony. Possession of most other drugs is a misdemeanor. (N.M. Stat. § 30-31-23 (2024).)

Ohio has penalties specific to cocaine possession that start as a felony in the fifth degree. (Ohio Rev. Code §§ 2925.01, 2925.11 (2024).)

Texas uses penalty groups for drug crimes. Cocaine falls under Penalty Group 1, which contains some of the harshest possession penalties, ranging from a state jail felony to a first-degree felony based on amount. (Tex. Health & Safety Code §§ 481.102, 481.115 (2024).)

Check out these and other state penalties for drug possession crimes.

Common Defenses to Cocaine Possession Charges

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.

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.

What to Do If You Face Cocaine Possession Charges

Cocaine possession is a serious crime. Talk to a lawyer immediately if you've been investigated for or charged with the crime. An experienced criminal defense lawyer will be able to advise you as to the strength of the case against you and the availability of any defenses. When facing federal drug charges, find a criminal defense attorney who practices in federal court.