Drugs and Gun Offenses

Question 1

Actual Possession

Answer 1

in or on the hands of a person; in a container on the person; readily within reach of the person

Question 2

Constructive Possession

Answer 2

when a party is not in direct possession but the instrument(s) are under that party’s dominion and control

Question 3

Factor Test for Dominion & Control

Answer 3

1) Whether D knew drugs were present in the area
2) D’s relationship to the person w/ actual possession
3) D’s proximity to the drugs
4) Evidence of recent drug use
5) Evidence that the area is frequented by drug users

Question 4

Joint Possession

Answer 4

A drug in physical possession of a companion if he willfully and knowingly shares with the other the right to control it

Question 5

Model Penal Code (Possession as an Act)

Answer 5

Knowing possession usually requires knowing about the prohibited substance

1) Where D knowingly procured or received possession;
2) Where D was sufficiently aware of their possession to have been able to terminate possession

Question 6

Deliberate Ignorance

Answer 6

Awareness/suspicion of a high probability that a fact may be true, and purposefully remaining ignorant not to learn the truth is sufficient to prove knowledge of such a fact (United States v. Jewell)

Question 7

Mistake of Fact

Answer 7

Only applies where such mistake precludes the existence of the required mental state and would create another crime.

1) D need not know the exact drug if they intended to sell a controlled substance, even if the actual drug in question would lead to a harsher sentencing conviction

2) D need not know the quantity of drugs if they knowingly possessed a controlled substance

Question 8

Simulated Substance

Answer 8

non-controlled substance expressly or impliedly represented as a controlled substance; AND which nature, packaging, or appearance would lead a reasonable person to believe it was a controlled substance

Question 9

Iowa v. Freeman

Answer 9

Where D believes they are selling a controlled substance but are selling a simulated substance, they are still held liable for they intended to sell a controlled substance

Question 10

Mistake of Law

Answer 10

Where a statute misleads a party to believe their conduct is permissible, they should not be punished, but they will fail if the government is not responsible for the error, which results in the excuse being unavailable.

New York v. Marrero (1987), facts: Federal correctional officer charged for possessing a gun without a license where a statute says “peace officers” of “any penal correctional institution” were exceptions to the law.