What is heroin?

Heroin Abuse
Heroin abuse is associated with serious health conditions, including fatal overdose, spontaneous abortion, and—particularly in users who inject the drug—infectious diseases, including HIV/AIDS and hepatitis.  Chronic users may develop collapsed veins, infection of the heart lining and valves, abscesses, and liver or kidney disease.  Chronic use of heroin leads to physical dependence, a state in which the body has adapted to the presence of the drug.  If a dependent user reduces or stops use of the drug abruptly, they may experience severe symptoms of withdrawal.

Heroin Production
Heroin production occurs in three primary regions: Afghanistan, Myanmar, and Colombia/Mexico.  The Colombia/Mexico producers supply the majority of heroin that makes its way into the United States.  The drug is readily available in most large metropolitan areas as well as many suburban and rural markets throughout the United States, with most heroin finding its way into the country by commercial air or overland.

Heroin and the Law
Heroin is classified as a Schedule I illicit substance with no medical utility under the Controlled Substance Act. As a Schedule I drug, heroin possession and/or distribution crimes have severe penalties attached to conviction of these offenses.  Typical penalties for heroin, as with all Schedule I drugs under the United States federal system include: (1) First time possession: one year in prison and a $5,000 fine; (2) Second time possession: two years in prison and a $10,000 fine; (3) First time distribution: maximum fifteen years in prison and a $25,000 fine; and (4) Second time distribution: thirty years in prison and a $50,000 fine.

Possession of heroin includes both actual possession, resulting from the drug being present in a person’s physical possession and constructive possession, resulting from a person having control over an area where heroin has been found but where the person may not be in direct physical proximity with the heroin.  An example of constructive possession is if you are the owner/inhabitant of a house where heroin or evidence of heroin is found while you are away from the premises, by virtue of the fact that you live in the house and have control and dominion over the property, you can be charged with possession of heroin.

Distribution of heroin and intent to distribute heroin are both treated similarly in their prosecution.  To possess or buy heroin intended for sell to another is a felony.  The prosecution doesn’t have to prove that a sell actually took place or that money changed hands—they just have to prove that there was an intention to sell the heroin.

Intent to sell heroin can be proven by evidence such as drug packaging (small bundles), weighing scales, cutting agents, people coming to/going from a home at all hours, fortified windows, conversations with police informants, undercover officers, or wiretapped telephone (cell, portable or landline) conversations so long as that evidence is obtained in a legal fashion.

Defending Heroin Possession Charges
Defenses to a heroin possession or heroin distribution charge include evidence that the person accused of the crime did not know what the heroin was and/or did not know that it was an illegal substance or some error made by law enforcement during the arrest, including such acts as illegal search and seizure, illegal surveillance, and entrapment.  Any abuse of the Constitutional rights of the accused may be called into question at a trial as a defense for possession or distribution of heroin.

In addition a person may be charged with illegal possession of weapons if the person is either not allowed to possess such a deadly weapon as a condition of a prior conviction or the possession is inconsistent with the laws for registration and possession of deadly weapons. Most states have a list of weapons that are illegal to possess or that require a permit to possess.

Deadly weapons include but are not limited to guns, ballistic knifes, belt buckle knifes, cane swords, Billy clubs, large-capacity ammunition magazines, ammunition with (or containing) an explosive agent, camouflaging firearm containers, any gun not immediately recognizable as a firearm, or metallic knuckles. However, since the advent of airline restrictions as a precaution to terroristic threats, the definition of a deadly weapon can include any object capable of inflicting death or injury. In reality, it is impossible to list everything that could constitute a dangerous weapon, and legislature has left the definition up to the courts to define on a case-by-case basis, U.S. v. Dishman, 486 F.2d 727, 730 (9th Cir. 1973).

Debates about the laws surrounding illegal possession are ongoing and heated, and center on the interpretation of the Second Amendment of the United States that states that law-abiding citizens have a right to bear arms. As a result of the many debates surrounding the issue of gun control and the Second Amendment, little uniformity exists among the states regarding weapons possessions laws, making the conviction of a charge of illegal possession of weapons complicated.

Each state has its own specific regulations for the sale and possession of weapons that includes the particular requirements that have to be met by an individual to possess concealed and assault weapons, the background and criminal history of the owner of the weapon, as well as the licensing and purchasing requirements of such possession. Seven states prohibit concealed weapons, and in over half of the states, all non-felons are able to obtain a license to carry a concealed weapon. Vermont, however, has no licensing or permit requirements for weapon possession. Thus, questions surrounding the exact nature of criminal possession of a weapon charges are rampant, and with each state having differing sets of regulatory requirements murky, at best.

Federal law makes it unlawful to possess firearms after a felony conviction of any kind, even if the sentence was suspended (18 U.S.C. § 922(g)(1). However, it is permissible to possess a weapon following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. An exception is when a person has been convicted of a domestic assault misdemeanor under which federal law bans the possession of a firearm for life (18 U.S.C. § 922(g)(9). And while federal law and most state laws prohibit anyone convicted of a felony from possessing a firearm, a restoration of civil rights or expungement or pardon of a conviction may allow a felon to regain weapons possession rights (18 U.S.C. § 921(a)(20).

Federal, state and local laws governing weapons regulatory issues undergo significant changes often. Reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon United States citizen or a person with a criminal conviction is complicated. Since 9/11, new laws have broadened the scope of punishable conduct, and courts appear to err on the side of the prosecution when a weapons possession charge is the issue. Given the potential consequence of ten or more years in federal prison for weapons possession, it is wise to be up-to-date on what is and what is not a weapon.

If you violate an illegal weapon law, you have generally committed a felony and could face criminal punishment that can include jail time (from one to five years), fines, (from $100 to $1000), probation or parole, loss of the right to own a deadly weapon, community service, and/or loss of your driver’s license in addition to other penalties determined by various state and local statues. Criminal possession of a weapon is a serious offense.

Defenses for a charge of illegal possession of weapons may potentially include the showing of insufficient evidence concerning the possession, proof of factual innocence of the person charged, or evidence that was obtained illegally in violation of federal or state search and seizure laws.

In general, a person is considered to have possession of something if that person knows of the presence of the item and has physical control of it, or has the power and intention to control the item. More than one person can be in possession of something if each person knows of its presence and has the power and intention to control it.

Examples of terms used in the law to specify the sundry nuances of possession include actual, adverse, conscious, constructive, exclusive, joint, illegal, legal, physical, sole, and superficial, as well as several other types. Some of the modifiers used to characterize possession are at times combined to narrow the specificity of the exact type of possession even more, as in joint constructive possession.

Actual Possession
Actual possession is the type of possession most commonly thought of when we think about possession in a legal sense. Actual possession (sometimes called possession in fact) means a person has direct physical custody or control of something on or around that person and is in actual possession of the item. For example, the wearing of a watch would put you in actual possession of the watch. Likewise, if you have your car keys in your pocket, you have actual possession as well. Actual possession is a very limited type of possession because frequently a person has obvious possession of an object but has no physical contact with it. To deal with this problem, drug possession laws broadened the scope of possession to reach beyond mere actual possession.

Constructive Possession
Constructive possession is a legal theory in the criminal justice system that extends the scope of possession to include situations where a person has no hands-on custody of an item. Constructive possession (sometimes called possession in law) means a person has knowledge of the existence of an object but no physical contact with it. He/she does not have actual possession of the item but has both the power and the intention to later take control over that item as in United States v. Derose, 74 F.3d 1177. For instance, you may have important documents and papers stored in a safety deposit box, and while you do not have actual physical custody and control over these items, you do have knowledge of them and the ability to exercise your control over them.

Criminal Possession
Criminal possession is possession of items that both federal and state statues make illegal to have. These items are considered dangerous or undesirable, and thus criminal to possess. Possession of certain items considered harmful to the public, like narcotics, stolen property, and burglary tools are criminal. A major source of controversy centers around criminal possession in the case of possession of drugs as this allows for arrests and convictions without proving the use or sale of the prohibited drug.

Possession of most controlled substances is a serious criminal offense under both state and federal law. Drug possession charges include the possession of controlled substances such as marijuana, methamphetamines, cocaine, ecstasy, or prescription drugs for which you do not have a prescription, like narcotic-based drugs such as Oxycodone and Vicodin. Possession of a controlled substance usually results in a felony charge, with the exception of small quantities of marijuana. Small amounts of marijuana possession are often considered misdemeanors as is the possession of drug paraphernalia (a pipe, a bong, etc.); however, most other drug convictions result in very serious penalties that may include prison and severe fines. Federal penalties for marijuana possession is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction, while federal penalties for cocaine and heroin possession are much more severe.

Defenses for Possession
In criminal cases, to be convicted of a crime of possession usually requires conscious possession. You must be conscious of the fact that you possess the item as well as conscious that possession of the item is illegal. Under the drug possession laws police may legitimately search persons and property and seize both persons and property, with or without a warrant. However, if police act without probable cause or exceed constitutional limitations by their actions, both searches and seizures may be deemed invalid causing any resulting evidence to be tainted and inadmissible as evidence in your case. Consequently, the most common approach for defending possession is violation of a person’s search and seizure rights.

Crack, another form of cocaine, comes in a rock crystal and can be heated and its vapors smoked.  With the advent of crack cocaine, the drug has become easily available and continues to burden law enforcement and health care systems alike.  Street names for cocaine include coke, Charlie, snow, flake, blow, nose candy, snowball, tornado, wicky stick, and toot.

Columbia, Peru, and Bolivia are the largest illicit coca producing countries in the world; however, Mexican drug trafficking organizations and criminal groups control most wholesale cocaine distribution in the United States, with Colombian and Dominican groups controlling some of the Northeast and Florida/Caribbean Regions.  Most cocaine is smuggled over the Mexican border into the United States and is distributed in nearly every large and midsize city.

Cocaine is categorized as a Schedule II drug under the Controlled Substances Act of 1970, classifying it as a drug with a high potential for abuse, but one that can be legitimately administered by a doctor for medical uses, such as local anesthesia for throat, eye, and ear surgeries.

Cocaine possession charges include not only simple (actual) possession of the drug (on the person), but may also include constructive possess of cocaine found in any area over which a person has control. For example, the driver of a car may be in constructive possession of cocaine found inside the glove compartment or the trunk of his car or the resident owner of a house may be in constructive possession of cocaine found in his kitchen or bedroom.

The criminal justice system is fairly consistent in the war on drugs with most state law for cocaine possession or distribution mirroring federal law.  Consequently the penalties for possession and/or distribution of cocaine are the same as for all other Schedule I or II narcotics possession and distribution convictions.

Possession of less than 3 grams of cocaine is a class D felony and is punishable with one-half to three years of jail time and a fine of up to $1,000.  For greater quantities, penalties increase, peaking at possession of 3 grams or more in a park, public housing complex, school bus, or within 1,000 feet of a school, which increases the charge to a Class A Felony with six to twenty years of jail time and fines up to $10,000.  In addition, following a conviction for cocaine possession, a person’s driver’s licenses and motor vehicle registrations are suspended for a minimum of six months and a maximum of two years.

Distribution (selling) of cocaine is a much more serious crime than possession of cocaine, with much more serious penalties.  A conviction of distribution which includes the crime of possession with intent to distribute as well as distribution itself is considered a Class B felony with a jail time sentence of six to twenty years.  Class A Felony cocaine distribution and possession with intent to distribute convictions are based on the amount of cocaine involved in the crime, and ranges from 3 grams of cocaine, which draws a penalty of 6-20 years to distribution and/or possession with intent to distribute near schools and other public places, which draws a penalty of twenty to fifty years.  All penalties may include fines of up to $10,000.

Distribution of cocaine, as with all Schedule I and II drug charges, include manufacturing, financing the manufacturing, delivering, or financing the delivery of cocaine.  A sale is not a requirement for a charge of distribution of cocaine.  Mere transfer of the product is sufficient for an arrest and conviction.

Defending cocaine possession/cocaine distribution charges lies in the ability to prove that either what was found did not belong to the person charged, or at least that the person did not have intention to sell the cocaine in his/her possession, or that the law enforcement officials who arrested the person violated the his constitutional rights.  These defenses would include unreasonable search and seizure of property, no probable cause for a search, unlawful surveillance, or entrapment.