People v. Harrington

• Decision Date: 19 May 1971
• Docket Number: No. 2,Docket No. 9481,2
• Citation: 190 N.W.2d 343,33 Mich.App. 548
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HARRINGTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 343

190 N.W.2d 343

33 Mich.App. 548

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HARRINGTON, Defendant-Appellant.

Docket No. 9481.

Court of Appeals of Michigan, Division No. 2.

May 19, 1971.

Leave to Appeal Denied Aug. 3, 1971.

Released for Publication Oct. 8, 1971.

Raymond V. Arnold, Best, Arnold & Gleeson, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and QUINN, JJ.

QUINN, Judge.

January 7, 1970, a jury convicted defendant of unlawful possession of a narcotic drug, M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123). He was sentenced and he appeals, raising one issue, namely: 'Is the possession of a modicum of heroin, insufficient in amount to be used for the purpose commonly intended, a violation of the statute?'

February 21, 1969, defendant and Mary Jean Cox were arrested on a charge of shoplifting. They were transported to the police station in the rear seat of a police car. On the way, the police officer observed defendant in the rear view mirror and defendant was squirming and fidgeting with his hands behind his back. Later, the officer removed the rear seat and two small packages were found. Two metal caps in one of the packages contained a minute residue of heroin. Some small needles, pieces of wire, some gauze, an eye dropper and packet of matches were also in the packages. A police officer characterized the packages as a 'heroin kit'.

Research has not disclosed any Michigan authority on the question of the quantity of the narcotic drug required to constitute possession as proscribed by the statute. California requires the quantity to be sufficient for the drug's common use, People v. Leal (1966), 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665. Texas has adopted a similar rule, Greer v. State (1956), 163 Tex.Cr.R. 377, 292 S.W.2d 122. The majority of the states that have passed on the question have held that the quantity possessed is immaterial. State v. Dodd (1965), 28 Wis.2d 643, 137 N.W.2d 465; Schenher v. State (1956), 38 Ala.App.[33 Mich.App. 550] 573, 90 So.2d 234; Mickens v. People (1961), 148 Colo. 237, 365 P.2d 679; People v. Norman (1962), 24 Ill.2d 403, 182 N.E.2d 188; State v. McDonald (1966), 92 N.J.Super. 448, 224 A.2d 18; State v. Young (Mo.1968), 427 S.W.2d 510; Haley v. State (1969), 7 Md.App. 18, 253 A.2d 424.

Without local precedent, this Court is free to adopt the minority or majority view or to reject both. Our choice should be governed by our judgment of what is the most reasonable, practical and readily applicable rule for efficient law enforcement without undue encroachment on individual rights. It is our judgment that the minority view may restrict efficient law enforcement; a quantity of narcotics sufficient for its common use is not necessarily a concomitant of illegal possession. On the other hand, the majority view that the quantity possessed is immaterial is so broad a view that it...