I. BACKGROUND
1. Marijuana: cannabis plant & drugs made from plant
a. 21 U.S.C. §802(16): plant, any extractions, seeds, etc. Does not include stalks of the plant.
b. Adoption of the term: when federal government banned the substance, they wanted to demonize it by
changing the name to associate it with the Mexican word/associate w/ Mexican immigrant
i. Reaction: Some have chosen to move away from this by using the term cannabis
c. SPLIT: Once cannabis is in your bloodstream, is it still marijuana? Can you be guilty of possession if you fail
a drug test?
2. THC/CBD: chemicals found in plant.
a. THC: produces psychoactive effects. May do so in positive ways or harmful ways.
b. Scientists/growers have been able to breed more potent strands of the plant: higher concentration of THC. 30
yrs ago average of 8% THC. Now can get up to 30% THC.
c. DEA: THC is a separately scheduled substance, so if it’s extracted from stalks it’s still illegal.
i. 9th Cir. pushback: only applies to artificial/synthetic THC, otherwise the definition would
be superfluous.
d. CBD: DEA says it falls under Schedule 1 of the CSA because it’s a naturally occurring constituent
of marijuana. Not psychoactive.
3. Methods of consumption: smoking, vaping, eating (edibles), applying topically, under the tongue (tinctures)
a. Easiest for producers to create joints.
b. Can extract THC using chemical processes (butane)
c. Edibles: Accidental overconsumption concerns: more delayed, stronger
i. Problems with accidental ingestion; i.e children eating brownies
4. Industrial hemp: strain of cannabis which produces little THC. Stalks/seeds used for many products like rope.
a. Usually falls outside legal def of marijuana in the U.S.
b. Still, the bud does contain some THC, so hemp products must be imported from a country that
allows commercial hemp cultivation
c. Lost opportunity for American farmers
d. Can get hemp products but can’t grow hemp plants in the U.S.
e. Members of Congress have proposed similar legislation to exclude industrial hemp
i. Some limited legislation to permit universities/state depts of agriculture to grow it for
research purposes
f. New Hampshire Hemp Council, Inc. v Marshall: State tried to regulate industrial hemp: bill proposes allowing
cultivation of hemp w/ 1% or less THC. Drug comes from flowers/leaves while fibers used for rope are taken
from the stalk. Plants grown from diff strains/cultivated differently than plants intended for drug use. DEA:
regardless of intended industrial use cultivation of cannabis sativa plants as the manufacture of marijuana and
therefore illegal under federal law. Federal statute defines marijuana as “all parts of the plant cannabis
sativa”...“such term does not include the mature stalks of such plant, fiber produced from such stalks, etc”
i. Holding: A literal reading of the statute is proper, making all forms of cannabis sativa plant illegal.
ii. Rule: a hemp plant is “marijuana” regardless of THC content.
iii. D argues: Plants contain very little psychoactive THC
1. Problem of detecting which plants produce the low THC: would make violation easier,
young cannabis sativa plants are virtually indistinguishable
2. Enforcement by police more difficult.
3. No statutory distinction based on THC content.
g. 2015 update: NH and 27 other states have expressly excluded industrial hemp from the definition of
marijuana under state law
h. 2018: Farm Bill, Section 10113: The implications of this change are clear: Cannabis plants and any
THC or CBD extracted from those plants are no longer considered marijuana – and thus, no longer subject to the
1
,CSA – if they do not exceed the .3% THC (once dried) concentration. In other words, the possession of these
items is no longer a crime under federal law.
5. Doctors give recommendation rather than prescription for marijuana
a. Why: if physician writes prescription, they could be punished by the DEA
i. DEA controls prescriptions: will take drs prescription authority if the prescribe marijuana
b. Parallel system of recommendations created by states
6. Prohibition laws are staggeringly broad, as seen below.
a. Courts are very reluctant to reign it in or limit it: have played a very subdued role in the United States, less so
in other countries.
b. Federal courts consistently have ruled that definition of marijuana includes all cannabis plants regardless of
their species or THC content.
c. Typical: courts may agree, but say “hands are tied” by language of the statute. (Marshall)
d. Has happened the other way: courts didn’t allow legislature to restrict further.
e. United States v. Honneus: D was convicted of several crimes stemming from purchase/importation of large
quantities of indica. Statute criminalized importing cannabis sativa. Back when statute was written, there was
only a single identified species. Expert testimony: cannabis has three species: sativa, indica, and ruderalis.
TC excluded this testimony.
i. Holding: Exclusion of testimony and classification of the plant are correct based on the purpose of
the statute, which was enacted when there was only one identified species of cannabis (sativa)
ii. Rule: Congress used term “cannabis sativa” to encompass all marijuana producing cannabis based
on info available at the time.
iii. No evidence Congress meant to exclude any type of marijuana w/ hallucinogenic effect
iv. P counters: intention was only to deal w/ type most commonly grown in America
2
, i. Tension
with
Marshall: reading broadly here rather than being strict textualists as in Marshall
II. MARIJUANA USERS
A. Prohibition Regimes: Possession/Use
1. Prohibition regimes: ban all use of marijuana outright
a. Includes federal law: Controlled Substances Act §844
b. Type A States: criminalize the use of marijuana
c. Type B States: decriminalized marijuana (civil ban): still unlawful to have it
d. 20 years ago, all states banned marijuana outright, but there has been a shift towards decriminalizing
2. Chief prohibition: offense of simple possession of marijuana
a. Possession is a safe proxy for use
b. Easier to prove you possess something than to prove you’re using something: have it in your possession for
a longer period of time, can consume it rapidly
3. Federal CSA §844(a): unlawful for any person knowingly or intentionally to possess a controlled substance unless
such substance was obtained directly or pursuant to a valid prescription or order from a practitioner.
4. Core elements of marijuana possession:
a. Culpable knowledge: D was aware of the presence of marijuana and its nature (Ervin)
i. Mens rea requirement explicit: Knowledge
ii. Minority rule: have eliminated culpable knowledge requirement. Still usually allow Ds to raise
the unwitting possession defense.
b. Control: D had ability/desire to control the substance (Regan)
3
, i. Mens rea + actus reus
ii. Does not require ownership
iii. No durational requirement: could apply for one second of control (one puff of a joint)
iv. Doesn’t matter what you plan to do with it
c. Marijuana: It was actually marijuana
i. Attendant circumstance
ii. Ignorance of the law: not a defense
iii. Getting more difficult for police to prove: labs are too busy, harder w/ more edibles, vapes, etc
where it’s not immediately apparent
d. Does not need to show D’s intent w/ the marijuana
5. Actual possession: If it’s found in an area where D had exclusive access (Ervin), knowledge/control are presumed,
easy for gov’t to establish case (i.e. find marijuana in someone’s backpack)
a. Ervin v. Virginia: Officers stopped a vehicle for a traffic violation, strong smell of mj. Searched vehicle for
mj. Using the key in the vehicle’s ignition, they unlocked the glove compartment and uncovered the
marijuana. No smoking devices were found. Vehicle belonged to D’s baby mama, she frequently lent it to
various people. D denied owning the marijuana, still convicted. D appealed, challenged requisite knowledge
element.
i. Holding: D is guilty of possessing marijuana based on the facts and circumstances described.
ii. Rule: Despite a D’s denial of knowledge, factfinder can infer based on combined facts
and circumstances.
1. Apparent Odor: D was driving a vehicle that smelled strongly of marijuana, would have
been apparent. Strong odor indicated marijuana that had already been smoked.
2. Control: D was the sole possessor of the vehicle and keys to glove compartment
3. Avoidance: D did not attempt to retrieve vehicle’s registration from the glove compartment:
can infer that D knew if he opened the glove compartment, officers would see the marijuana.
4. Dishonesty: D appeared to be fabricating his story to conceal guilt: party’s dishonesty about
a material fact as affirmative evidence of guilt
5. Value: Unlikely that marijuana which has a street value of over 200 would be left in the car.
iii. Dissent: No evidence that odor was coming from D’s person, that he appeared intoxicated, or that he
possessed any drug paraphernalia. D got the vehicle only two hours prior to traffic stop. Could have
been smoked in the care before D took possession of the vehicle and still resulted in a strong odor of
marijuana. Having the key to the glove compartment doesn’t mean he knew what was in it. The
marijuana wasn’t abandoned, rather it was locked in the glove compartment: seems intended to hide
it. D wasn’t the owner of the car: reasonable doubt exists.
iv. Mikos: Defense may have been stronger contesting the desire element of control.
6. Constructive possession: If it’s found in a shared space/common area, gov’t has to offer additional proof to show
you had knowledge/control. Must be additional facts to suggest it was yours.
a. Regan v. Wyoming: 2pax were driving from Denver to Wyo. Officer pulled over car, smelled mj, saw jars of
mj on floor. Found cash and more mj. D said mj belonged to the passenger, passenger corroborated. D still
found guilty of possession by jury.
i. Holding: The evidence presented was insufficient to support a conviction for felony possession
of marijuana because the state failed to show that Regan intended to control the marijuana
ii. Rule: Accused must have both “power and intention” to control the substance.
iii. Trujillo was the party responsible for selling/distributing the marijuana, Regan never had a plan to.
iv. State argued Regan owned the car and was driving w/ marijuana inside: but since possession was
shown not to be exclusive, other evidence was necessary.
v. Regan said he wasn’t involved because it wasn’t worth the risk.
vi. Mikos: Aiding/abetting might have been a better crime to charge here. Wrong choice of charges in
a case can result in a non-conviction or court butchering law to help gov’t win.
4
1. Marijuana: cannabis plant & drugs made from plant
a. 21 U.S.C. §802(16): plant, any extractions, seeds, etc. Does not include stalks of the plant.
b. Adoption of the term: when federal government banned the substance, they wanted to demonize it by
changing the name to associate it with the Mexican word/associate w/ Mexican immigrant
i. Reaction: Some have chosen to move away from this by using the term cannabis
c. SPLIT: Once cannabis is in your bloodstream, is it still marijuana? Can you be guilty of possession if you fail
a drug test?
2. THC/CBD: chemicals found in plant.
a. THC: produces psychoactive effects. May do so in positive ways or harmful ways.
b. Scientists/growers have been able to breed more potent strands of the plant: higher concentration of THC. 30
yrs ago average of 8% THC. Now can get up to 30% THC.
c. DEA: THC is a separately scheduled substance, so if it’s extracted from stalks it’s still illegal.
i. 9th Cir. pushback: only applies to artificial/synthetic THC, otherwise the definition would
be superfluous.
d. CBD: DEA says it falls under Schedule 1 of the CSA because it’s a naturally occurring constituent
of marijuana. Not psychoactive.
3. Methods of consumption: smoking, vaping, eating (edibles), applying topically, under the tongue (tinctures)
a. Easiest for producers to create joints.
b. Can extract THC using chemical processes (butane)
c. Edibles: Accidental overconsumption concerns: more delayed, stronger
i. Problems with accidental ingestion; i.e children eating brownies
4. Industrial hemp: strain of cannabis which produces little THC. Stalks/seeds used for many products like rope.
a. Usually falls outside legal def of marijuana in the U.S.
b. Still, the bud does contain some THC, so hemp products must be imported from a country that
allows commercial hemp cultivation
c. Lost opportunity for American farmers
d. Can get hemp products but can’t grow hemp plants in the U.S.
e. Members of Congress have proposed similar legislation to exclude industrial hemp
i. Some limited legislation to permit universities/state depts of agriculture to grow it for
research purposes
f. New Hampshire Hemp Council, Inc. v Marshall: State tried to regulate industrial hemp: bill proposes allowing
cultivation of hemp w/ 1% or less THC. Drug comes from flowers/leaves while fibers used for rope are taken
from the stalk. Plants grown from diff strains/cultivated differently than plants intended for drug use. DEA:
regardless of intended industrial use cultivation of cannabis sativa plants as the manufacture of marijuana and
therefore illegal under federal law. Federal statute defines marijuana as “all parts of the plant cannabis
sativa”...“such term does not include the mature stalks of such plant, fiber produced from such stalks, etc”
i. Holding: A literal reading of the statute is proper, making all forms of cannabis sativa plant illegal.
ii. Rule: a hemp plant is “marijuana” regardless of THC content.
iii. D argues: Plants contain very little psychoactive THC
1. Problem of detecting which plants produce the low THC: would make violation easier,
young cannabis sativa plants are virtually indistinguishable
2. Enforcement by police more difficult.
3. No statutory distinction based on THC content.
g. 2015 update: NH and 27 other states have expressly excluded industrial hemp from the definition of
marijuana under state law
h. 2018: Farm Bill, Section 10113: The implications of this change are clear: Cannabis plants and any
THC or CBD extracted from those plants are no longer considered marijuana – and thus, no longer subject to the
1
,CSA – if they do not exceed the .3% THC (once dried) concentration. In other words, the possession of these
items is no longer a crime under federal law.
5. Doctors give recommendation rather than prescription for marijuana
a. Why: if physician writes prescription, they could be punished by the DEA
i. DEA controls prescriptions: will take drs prescription authority if the prescribe marijuana
b. Parallel system of recommendations created by states
6. Prohibition laws are staggeringly broad, as seen below.
a. Courts are very reluctant to reign it in or limit it: have played a very subdued role in the United States, less so
in other countries.
b. Federal courts consistently have ruled that definition of marijuana includes all cannabis plants regardless of
their species or THC content.
c. Typical: courts may agree, but say “hands are tied” by language of the statute. (Marshall)
d. Has happened the other way: courts didn’t allow legislature to restrict further.
e. United States v. Honneus: D was convicted of several crimes stemming from purchase/importation of large
quantities of indica. Statute criminalized importing cannabis sativa. Back when statute was written, there was
only a single identified species. Expert testimony: cannabis has three species: sativa, indica, and ruderalis.
TC excluded this testimony.
i. Holding: Exclusion of testimony and classification of the plant are correct based on the purpose of
the statute, which was enacted when there was only one identified species of cannabis (sativa)
ii. Rule: Congress used term “cannabis sativa” to encompass all marijuana producing cannabis based
on info available at the time.
iii. No evidence Congress meant to exclude any type of marijuana w/ hallucinogenic effect
iv. P counters: intention was only to deal w/ type most commonly grown in America
2
, i. Tension
with
Marshall: reading broadly here rather than being strict textualists as in Marshall
II. MARIJUANA USERS
A. Prohibition Regimes: Possession/Use
1. Prohibition regimes: ban all use of marijuana outright
a. Includes federal law: Controlled Substances Act §844
b. Type A States: criminalize the use of marijuana
c. Type B States: decriminalized marijuana (civil ban): still unlawful to have it
d. 20 years ago, all states banned marijuana outright, but there has been a shift towards decriminalizing
2. Chief prohibition: offense of simple possession of marijuana
a. Possession is a safe proxy for use
b. Easier to prove you possess something than to prove you’re using something: have it in your possession for
a longer period of time, can consume it rapidly
3. Federal CSA §844(a): unlawful for any person knowingly or intentionally to possess a controlled substance unless
such substance was obtained directly or pursuant to a valid prescription or order from a practitioner.
4. Core elements of marijuana possession:
a. Culpable knowledge: D was aware of the presence of marijuana and its nature (Ervin)
i. Mens rea requirement explicit: Knowledge
ii. Minority rule: have eliminated culpable knowledge requirement. Still usually allow Ds to raise
the unwitting possession defense.
b. Control: D had ability/desire to control the substance (Regan)
3
, i. Mens rea + actus reus
ii. Does not require ownership
iii. No durational requirement: could apply for one second of control (one puff of a joint)
iv. Doesn’t matter what you plan to do with it
c. Marijuana: It was actually marijuana
i. Attendant circumstance
ii. Ignorance of the law: not a defense
iii. Getting more difficult for police to prove: labs are too busy, harder w/ more edibles, vapes, etc
where it’s not immediately apparent
d. Does not need to show D’s intent w/ the marijuana
5. Actual possession: If it’s found in an area where D had exclusive access (Ervin), knowledge/control are presumed,
easy for gov’t to establish case (i.e. find marijuana in someone’s backpack)
a. Ervin v. Virginia: Officers stopped a vehicle for a traffic violation, strong smell of mj. Searched vehicle for
mj. Using the key in the vehicle’s ignition, they unlocked the glove compartment and uncovered the
marijuana. No smoking devices were found. Vehicle belonged to D’s baby mama, she frequently lent it to
various people. D denied owning the marijuana, still convicted. D appealed, challenged requisite knowledge
element.
i. Holding: D is guilty of possessing marijuana based on the facts and circumstances described.
ii. Rule: Despite a D’s denial of knowledge, factfinder can infer based on combined facts
and circumstances.
1. Apparent Odor: D was driving a vehicle that smelled strongly of marijuana, would have
been apparent. Strong odor indicated marijuana that had already been smoked.
2. Control: D was the sole possessor of the vehicle and keys to glove compartment
3. Avoidance: D did not attempt to retrieve vehicle’s registration from the glove compartment:
can infer that D knew if he opened the glove compartment, officers would see the marijuana.
4. Dishonesty: D appeared to be fabricating his story to conceal guilt: party’s dishonesty about
a material fact as affirmative evidence of guilt
5. Value: Unlikely that marijuana which has a street value of over 200 would be left in the car.
iii. Dissent: No evidence that odor was coming from D’s person, that he appeared intoxicated, or that he
possessed any drug paraphernalia. D got the vehicle only two hours prior to traffic stop. Could have
been smoked in the care before D took possession of the vehicle and still resulted in a strong odor of
marijuana. Having the key to the glove compartment doesn’t mean he knew what was in it. The
marijuana wasn’t abandoned, rather it was locked in the glove compartment: seems intended to hide
it. D wasn’t the owner of the car: reasonable doubt exists.
iv. Mikos: Defense may have been stronger contesting the desire element of control.
6. Constructive possession: If it’s found in a shared space/common area, gov’t has to offer additional proof to show
you had knowledge/control. Must be additional facts to suggest it was yours.
a. Regan v. Wyoming: 2pax were driving from Denver to Wyo. Officer pulled over car, smelled mj, saw jars of
mj on floor. Found cash and more mj. D said mj belonged to the passenger, passenger corroborated. D still
found guilty of possession by jury.
i. Holding: The evidence presented was insufficient to support a conviction for felony possession
of marijuana because the state failed to show that Regan intended to control the marijuana
ii. Rule: Accused must have both “power and intention” to control the substance.
iii. Trujillo was the party responsible for selling/distributing the marijuana, Regan never had a plan to.
iv. State argued Regan owned the car and was driving w/ marijuana inside: but since possession was
shown not to be exclusive, other evidence was necessary.
v. Regan said he wasn’t involved because it wasn’t worth the risk.
vi. Mikos: Aiding/abetting might have been a better crime to charge here. Wrong choice of charges in
a case can result in a non-conviction or court butchering law to help gov’t win.
4
