People v. Harrington

• Decision Date: 27 January 1976
• Docket Number: No. 55136,55136
• Citation: 238 N.W.2d 20,396 Mich. 33
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HARRINGTON, Defendant-Appellant. 396 Mich. 33, 238 N.W.2d 20
• Court: Michigan Supreme Court

Page 20

238 N.W.2d 20

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

No. 55136.

396 Mich. 33, 238 N.W.2d 20

Supreme Court of Michigan Jan. 27, 1976.

James M. Justin, Asst. Pros. Atty., Jackson, for plaintiff-appellee.

State App. Defender Office by Roger L. Wotila, Stuart M. Israel, Asst. Defenders, Detroit, Terry Flanagan, Researcher, for defendant-appellant.

WILLIAMS, Judge.

Defendant was prosecuted for possession of a small residue of heroin, visible to the naked eye, in the form of a hard powdery substance on the interior of a bottle cap. Defendant sought to avoid conviction by asking this Court to construe this state's former statute making it a felony for 'any person not having a license . . . (to) possess or have under his control any narcotic drug' to require possession of a 'usable amount'. We affirm defendant's conviction on these facts and reject the 'usable amount' and the Court of Appeals 'remnant of a usable amount' tests.

I--FACTS

February 21, 1969, defendant Robert Harrington and his companion Mary Jean Cox were arrested in Jackson on a charge of shoplifting. Before being searched, they were placed in the rear seat of a patrol car and brought to the police station. At trial, the two arresting officers testified that they had observed Harrington through the rear view mirror and that he was fidgeting with his hnds behind his back. Both officers saw nothing in defendant's hands. (4b, 7b) Harrington was seated on the right side of Ms. Cox, (6b) about eight to ten inches away from her. (28a) One officer testified that he did not know whether defendant or Ms. Cox was right or left-handed. (28a) After delivering their two suspects to the police station, the officers returned to the car and searched it. After removing the rear seat, they discovered two small packages, one consisting of several hypodermic needles, a book of matches, part of an eye-dropper and the cotton end of a Q-tip. The second package contained two metal bottle caps with a thin film of what was later identified as heroin inside.

Although the film was only a residue of the narcotic drug involved, that residue was readily apparent to the naked eye. The most direct testimony applicable to our test involved the police chemist:

'Q. . . . Are you able to see residue at the present time?

'A. There is some residue, yes. . . .

'Q. And, what do you mean when you use the word 'residue'?

'A. It is just a hard powdery substance, which is on the interior of the cap.' (39a)

The relationship of the evidence's location to defendant was described by the testifying officer as:

'A. It would be on his--more or less to the right of him, right in the center of the vehicle, where he was positioned in the seat. It was in back of him on his right side.' (5b)

This, of course, removes it from Mary Cox who was on defendant's left.

The officer who uncovered the packages testified that he handled them, did not consider dusting them for fingerprints, and did not know if any fingerprint processing had been performed on these exhibits. (26a--27a) A qualitative, but no quantitative analysis was performed on the heroin residue.

Defendant was tried and convicted by a jury of unlawful possession of a narcotic drug. ¹ He appealed, raising only one issue: 'Is the possession of a modicum of heroin, insufficient in amount to be used for the purpose commonly intended, a violation of the statute?' People v. Harrington, 33 Mich.App. 548, 549, 190 N.W.2d 343, 344 (1971). In reversing and remanding for a new trial, the Court of Appeals recognized this as a question of first impression in Michigan, rejected the two tests used in this country, and adopted a new one.

'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. 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; People 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 may tend to encourage infringement of individual rights.

'It is our judgment that a reasonable compromise between the minority and majority views has been proposed in the article 'Drugs and the Criminal Law', 12 Crim.Law Quarterly 254 (July, 1970). Arthur C. Whealy there suggests that the facts and circumstances in each case be viewed to determine if it can be reasonably inferred that the quantity of narcotic actually discovered is but a remnant of a larger, usable amount. If that inference can be made, illegal possession is established.' 33 Mich.App. 54, 549--550, 190 N.W.2d 343, 344.

At the subsequent trial, this test was applied. The jury found defendant guilty and he was sentenced to 3 to 10 years in prison.

Application for delayed appeal was denied by the Court of Appeals July 13, 1973. (15a) We granted leave January 28, 1974, 391 Mich. 769.

II--THE RELEAVANT STATUTES

The charge was laid under 1952 P.A. 266 § 3, being M.C.L.A. § 335.153; M.S.A. § 18.1123, which reads as follows:

'Any person not having a license . . . who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony . . ..' M.C.L.A. § 335.153; M.S.A. § 18.1123.

Both the former statutes under which this conviction occurred and the new Controlled Substances Act include possession as one of a number of offenses relating to traffic in narcotic drugs. Thus, the former statute M.C.L.A. § 335.152; M.S.A. § 18.1122 made the sale and manufacture of such drugs by nonlicensees a felony; M.C.L.A. § 335.153; M.S.A. § 18.1123, Supra, fn. 1, made possession a felony; and M.C.L.A. § 335.154; M.S.A. § 18.1124 made unlawful use a misdemeanor.

None of these statutes specified that any amount must be involved before the prohibition became relevant.

Under the Controlled Substances Act, delivery, possession and use remain offenses, with penalties depending on the type of substance involved. M.C.L.A. § 335.341; M.S.A. § 18.1070(41). Under the new statutory scheme, the amount of substance is relevant if it is included in schedule 3, M.C.L.A. § 335.318; M.S.A § 18.1070(18), for example, but as to heroin, a schedule 1 substance, M.C.L.A. § 335.314; M.S.A. § 18.1070(14), it and other opium derivatives are proscribed 'when the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation.' In the absence of such specifics in the former statute, combined with the specific language prohibiting sale of 'any narcotic drug', possession of 'any narcotic drug' and use of 'any narcotic drug', it is difficult to see how the requirement of a particular amount can properly be added to this legislative language. This logic is the approach taken by most states.

III--THE MAJORITY TEST FOR POSSESSION

The view in most jurisdictions is that possession of any quantity of proscribed narcotic is sufficient to support conviction. ² Possession is the gravamen of the offense charged. State v. Young, 427 S.W.2d 510, 513 (Mo., 1968).

Support for this approach is found in the language of the Uniform Narcotic Drugs Act, adopted with various modifications by 47 states including Michigan, the District of Columbia and Puerto Rico. Am.Jur.2d Desk Book, Doc. No. 129. Section 2 of the Act was the basis for the statute under which defendant was charged. ³ Knowledge or intent to possess is not part of the specific language of this statute. ⁴

Therefore, it is necessary, according to this view, that qualitative analysis be performed on the unknown substance in order to determine What it is, but quantitative analysis is unnecessary to determine How much of the proscribed substance there is. State v. Humphreys, 54 N.J. 406, 410--411, 255 A.2d 273, 275 (1969); Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953); State v. McDonald, 92 N.J.Super. 448, 452, 224 A.2d 18, 20 (1966). Thus, marijuana debris about the size of a dime found in defendants' pockets was sufficient to prove possession, Fagin v. People, 174 Colo. 540, 542, 484 P.2d 1216, 1217 (1971), as was 3 milligrams scraped from three gelatin half capsules, State v. Young, 427 S.W.2d 510 (Mo., 1968) or the narcotic in six or seven cigarette butts from handmade cigarettes 80 to 90 percent marijuana, State v. Phelps, 8 Or. App. 198, 200, 493 P.2d 1059, 1060 (1972), or .00457 ounce of marijuana in a bamboo pipe, Commonwealth v. Walker, 226 Pa.Super. 149, 155, 313 A.2d 351, 354 (1973).

The most usual criticism directed against this test is that courts applyint it may be convicting individuals who may not have known they possessed the substance they were accused of possessing. See, e.g., People v. Leal, 64 Cal.2d 504, 509--510, 50 Cal.Rptr. 777, 781, 413 P.2d 665, 669 (1966). A closer examination of the cases, however, indicates that this...