Don't Bogart that joint
There'll be a referendum on the ballot in California this fall on whether to legalize marijuana. If it passes -- and polls show a majority favoring it -- my client Randolph is a sure bet to head out there. By bus, not plane; despite being 24 years old, Randy doesn't have a job. (Not surprising in the true stoner culture. I always like it when one of them says something like, "Dude, George Washington smoked hemp, ya know?" Well, yes, he did, but he wasn't living in his parents' basement at 34, either.)
Randy's troubles started from his desire to be a big man at the party. At least, that's the way he tells it. He was headed to a blowout in the city, with attendance expected in three figures, so he decided to plunk down sixty bucks for about sixteen grams of weed, intent on sharing it with his fellow revelers. He called his ride, and the two set out for their journey on the good ship Party Time. Instead, they were stopped by The Man, and the ensuing search of their vehicle led to the discovery of the demon weed.
That's where I come in. Possession of less than 100 grams of marijuana (about 4 ounces) is a minor misdemeanor, punishable by a $100 fine. Trafficking in marijuana, though, is a 5th degree felony, and that's what Randy and his confederate were charged with. You see, Randy didn't just buy sixteen grams of marijuana, he bought a bag containing nineteen individually wrapped little baggies of marijuana, and so the state was claiming that this was preparation for distribution and sale.
First up, as is the situation with probably more than half of all drug cases, was the suppression hearing. A vice detective had stopped the car because it was "weaving," and then observed the occupants making the obligatory "furtive movements." We fenced around on that for a while (note to self: the next time, ask the cop to explain the difference between furtive and non-furtive movements), but I was pretty sure it wasn't going anywhere. In fact, that it had gone this far was a surprise, considering that my client, as a passenger in the vehicle, didn't have standing to raise the issue of the validity of the search of the vehicle. It was a bit closer than I'd anticipated; the judge announced that he wanted to think about it for a while, and we scheduled the trial for a few weeks later. The judge overruled the motion at that point, but the other lawyer and I had talked things over and told our clients that they'd be better off with the judge hearing the case, so they waived the jury and off we went.
The case turned on a simple issue: was the marijuana meant for personal use, or did Randy intend to sell it? The state's argument was that it was intended for sale, because that's how marijuana is sold: in small nickel or dime bags. Of course, that leads to the tomato soup defense, which I explained way back here: if you like tomato soup a lot, you're going to buy it in quantity, not just a can at a time. And if majijuana is sold in small baggies, that's the way it's going to be purchased, too, which is precisely what Randy did.
This argument fares better if you're talking a few little bags of the stuff. (A few years back, it was the policy of the Cleveland Police Department to charge someone with trafficking if he was found with more than three baggies.) But the detective was a veteran, and I'd been able to walk him through all the normal indicia of drug trafficking -- a stopped car with a lot of people coming up to it and then walking away, finding containers of the small bags or a scale in the car when it was searched -- all things that he acknowledged he hadn't seen. The case rested entirely on the number of baggies.
So time to put Randy on the stand and have him explain how he came into possession of the pot. Except that part about the party, and how he was going to give it to other people? Well, I first learned about that when everybody else did: while he was testifying.
The prosecutor, of course, argued that this clearly did show an intent to distribute. I did a quick recovery and argued that the statute requires the defendant to know that the drug was intended for sale or resale, and here there wasn't going to be any sale. The judge asked the prosecutor if he had any case law holding that a gift of marijuana could constitute a sale. He promised to supply the court with it, and the judge said he'd announce his verdict the following Monday.
I headed back to the office to research the gift issue myself, and after a couple minutes, lo and behold, I found RC 2925.03(C)(3)(g), which makes it a crime to traffic in marijuana, but provides:
...if the offense involves a gift of twenty grams or less of marihuana, trafficking in marihuana is a minor misdemeanor upon a first offense and a misdemeanor of the third degree upon a subsequent offense...
I never knew that. I put together a quickie post-trial brief. Turns out it wasn't necessary; when we went back on Monday, the judge pointedly noted that he'd found Randy "not credible," but found that the state hadn't presented evidence that there really was going to be a sale, so Randy and his friend were not guilty.
But that provision is something to keep in mind. Say you've got a client charged with selling marijuana, based on the police observing a transaction. Hey, I wasn't selling, officer, I was just giving it away.
I call it the "Give a bud to a bud" provision.
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