Marijuana Possession for Sale

California Health and Safety code §11359 makes it unlawful for any person to have any marijuana in possession for sale.

The government must prove two crucial elements in order to convict the person charged:

• Marijuana must be in the person’s possession
• There was an intent to sell

The Prosecution may demonstrate possession in one of two ways, through actual or constructive possession. Actual possession is when the marijuana is found directly on the person, eliminating any issue as to whose the drug is.

Ex. A bag of marijuana is found in the pocket of the jacket worn by a person. This is Actual Possession. The marijuana is physically on the person since it is in their jacket pocket.

Constructive possession is when marijuana is not found directly on the person, but is in an area over which they have immediate control and own items in that general vicinity.

Ex. A container of marijuana is found under the pillow of the bed upon which the person is sleeping. The bed is in his or her bedroom, in which they have all their belongings and live. There is constructive possession because the pillow is under the immediately control of the person.

Prosecutors use the Totality of Circumstances method to demonstrate intent to the Judge. The Totality of Circumstances method takes into consideration the facts surrounding the case to prove that the person charged had an intent to sell.

Ex: A person is found with 15 medication bottles of marijuana in a place known for drug deals. Each bottle is measured to the exact same amount and found in the person’s backpack. Along with the bottles, there are stacks of cash in low denominations.

Government will argue that the person is in a place where people usually sell drugs and question why they would have equally measured out bottles and lots of cash if they were not selling it. Compare that scenario with the following:

Ex: A person is found with a big bag of marijuana in the trunk of a car they are standing next to. The bag is by itself and the key to the car is not found on the person.

The prosecution will have a hard time making a strong case, since there is no implication that the marijuana was necessarily the person’s or that it was for the intent to sell. There seems to be no proof that the car was owned by the person, since the keys were not on them and none of their belongings were in the car besides the marijuana. Additionally, there is nothing to indicate it was for sale, no weight scale, cash or measured bags.

Perhaps the government may charge the person with the lesser crime of Drug Possession, but even then the element of possession seems to be a weak argument.