CR 5-601: Possession of CDS

There are not many Maryland criminal laws that have changed more over the last few years than those regarding controlled dangerous substances or CDS.  The penalties for CDS crimes are constantly evolving and with respect to marijuana there is likely no penalty at all because simple possession is now legal.  One thing that has not changed much over the last decade is the definition of possession.  According to Criminal Law Section 5-601 it is unlawful to possess a controlled dangerous substance unless it was obtained through a valid prescription or order from a medical professional or another licensed individual.   There are three main elements of a possession case in Maryland state courts under CR 5-601.  The first is that the defendant knowingly possessed the substance at issue.  Possession is almost always the core issue in this case, but it is not always easy to define what exactly it means to possess something.  The Maryland Jury Instructions define possession as having control over something, whether actual or indirect.  Actual possession means the defendant has direct control and the intention to exercise that control over an object, whether it is on their person or in their vicinity.  Indirect possession applies in circumstances where the defendant does not have actual possession but has the power to exercise control.  This is clearly a layered and confusing definition that requires the finder of fact to consider circumstances such as the where the substance was found in relation to the defendant and whether the defendant had ownership of the place where it was found- usually a vehicle or home.  We could write pages on the definition of possession, and the complexity of the issue is often what leads to these cases being winnable in court.  Assuming the State establishes possession, it must then prove the defendant knew the general character or illicit nature of the substance.  Finally, it must be established that the substance was in fact CDS.  Proving that a substance is CDS typically requires a lab report and the testimony of a forensic chemist.
 
If a driver is pulled over for a traffic infraction and police conduct a probable cause search the driver will often be charged with possession if CDS is found in the vehicle.  This is true in cases where CDS is found in the trunk or other enclosed compartments because Maryland law applies a presumption of knowledge of the contents of the vehicle upon the driver.  An exception to this general rule would be a scenario where CDS is found on a passenger or in a passenger’s bag or jacket that is within the vehicle.  A police officer could still charge the driver and all other passengers with possession in this type of situation, but the case would have a strong defense that could possibly overcome the presumption.  Another common example of a possession case occurs when police enter a home or hotel room and see CDS in plain sight. All the individuals who were close to the CDS risk being charged and their cases will often hinge on their relationship to the property and whether there were other things found on their person.
 
Possession with intent to distribute or PWID under CR 5-602 is still a widely prosecuted crime in for both cannabis and narcotics such as heroin, fentanyl and cocaine.  Possession with intent to distribute cannabis is now a misdemeanor with a 3-year maximum penalty, and in many cases a good lawyer should be able to negotiate for a reduction or dismissal of the charge.  The maximum penalty for PWID narcotics remains harsh at up to 20 years in prison.  While this penalty is seldom imposed, those who are placed on probation and then ordered to return to court for violation of probation proceedings face the real possibility of lengthy incarceration.
 
There are a host of effective defenses in possession cases, and the appropriate defense will hinge on the exact circumstances surrounding the police officer’s discovery of the CDS.  The most basic but also effective defense is that the State did not establish actual or indirect possession of the substance.  This can be achieved by blaming another individual or even arguing that the police planted the CDS.  Law enforcement will almost never fingerprint the packaging of CDS even though ordering prints is common law enforcement practice.  The fingerprinting argument is often stronger when you compare what the State does to prove that the substance is an actual illegal drug.  For example, there is a certified expert who performs a sophisticated test to conclude a white powdery substance is cocaine, but there are no scientific tests performed to prove that the cocaine actual was possessed by the defendant.  This is in spite of the fact that all law enforcement agencies have the capability to examine packages for fingerprints or call a forensics team from another agency.
 
A first violation of Maryland Criminal Code Section 5-601(a)(1), possession not cannabis carries a maximum penalty of up 1 year in jail.  A second or third offense carries up to 18 months and a fourth or subsequent carries up to 2 years in jail.  The State must provide notice of its intention to seek enhanced penalties for repeat offenders.  CDS violations for cannabis carry up to 6 months in jail for possession by a person under the age of 21 or possession over civil.
 
Benjamin Herbst is a Maryland drug crimes lawyer who has successfully defended hundreds of clients in CDS cases ranging from simple possession to drug trafficking and manufacturing.  He is available 7 days a week for a free consultation about your case.