Thank You For Submiting Feedback!
Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, The felony drug possession statute, Wash. Rev. Code § 69.50.4013(1) is just as unconstitutional as were the laws in Lambert v. California, Papachristou v. City of Jacksonville, and City of Seattle v. Pullman.
In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. Verbatim Report of Proceedings (VRP) at 19. They arrested three people on the property, including Shannon Blake. At the jail, a corrections officer discovered a small baggie containing methamphetamine in the coin pocket of Blake’s jeans. The State charged Blake with possession of a controlled substance in violation of RCW 69.50.4013. At trial, Blake relied on the judicially created affirmative defense of “unwitting possession.” She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest. Blake said she had never used methamphetamine and did not know the jeans had drugs in the pocket. She acknowledged that the drugs had been “on [her]” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. The trial court found that Blake had “possess[ed]” methamphetamine on the day in question. Consistent with the law as interpreted in Cleppe and Bradshaw, it did not make any findings as to whether the State had proved that Blake’s possession was intentional or knowing. It did conclude, however, that Blake had not met her burden to prove that her possession was unwitting. Accordingly, the trial court found Blake guilty. On appeal, Blake argued that “requiring her to prove unwitting possession to [sic] the charged offense violates due process.” Relying on Cleppe and Bradshaw, the Court of Appeals held that “[t]he crime of possession of a controlled substance does not require a mens rea element” and the defense’s burden to show unwitting possession does not violate due process.
Is unintentional, unknowing possession of a controlled substance the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize?
To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct. States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated. The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes. But the possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession. The possession statute also imposes harsh felony consequences on this passive nonconduct. Violation of this simple possession statute constitutes a class C felony. It is punishable by a maximum of five years’ imprisonment and a $10,000 fine. In addition, all such felony convictions strip defendants of many fundamental rights, both during their time of incarceration and long afterward. And drug offenders in particular are subject to countless harsh collateral consequences affecting all aspects of their lives. “Those convicted of drug offenses are subject to a number of additional penalties,” including denial of more than 750 federal benefits, including consequences for health care, education, employment, housing, parenting, professional licenses, and others.
Imposing such harsh penalties for such innocent passivity violates the federal and state rule that passive and wholly innocent nonconduct falls outside the State’s police power to criminalize. This is clear from a decision of the Louisiana Supreme Court on the constitutionality of a similar drug possession statute from 1980: State v. Brown, 389 So. 2d 48 (La. 1980). In that case, decided 40 years ago, the Louisiana Supreme Court recognized that a criminal statute penalizing unknowing drug possession violated the constitution. The Louisiana statute had made it a crime to “‘unknowingly or intentionally’” possess a controlled dangerous substance. The defendants challenged the criminalization of “unknowing” possession as unconstitutional. The Louisiana Supreme Court agreed. It ruled that, because the statute criminalized situations where “a third party hands the controlled substance to an unknowing individual who can then be charged with and subsequently convicted … without ever being aware of the nature of the substance he was given,” which “offend[ed] the conscious [sic],” the statute was unconstitutional.
In sum,Washington’s strict liability drug possession statute, like Louisiana’s strict liability drug possession statute, is therefore unconstitutional. It criminalizes unknowing, and hence innocent, passivity and therefore “has an insufficient relationship to the objective of” regulating drugs. The statute “goes beyond the scope of legitimate police power authority.”