Summary
In State v. Dempsey (1970), 22 Ohio St.2d 219, 222, the Ohio Supreme Court held that "the element of scienter in a narcotics possession case consists of two branches; that the defendant knew that the substance was in his possession, and that he knew the substance was a narcotic."
Summary of this case from State v. JordanOpinion
No. 69-337
Decided June 3, 1970.
Criminal law — Routine search without warrant of person booked — Immediately prior to entering cell — Inventorying personal effects — Possession of marijuana proscribed — Minute, unusable amounts found in prisoner's pocket — Presumption of scienter not applicable — R.C. 3719.09.
1. A routine stationhouse search without a warrant of a person, who is being booked immediately prior to his entering a cell for the purpose of inventorying and safekeeping his personal effects, is not violative of the Ohio Constitution or the Fourth or Fourteenth Amendments to the United States Constitution.
2. Where the only evidence against one accused of possession of marijuana shows that a few minute particles of marijuana were found mixed among the lint and debris of his jacket pocket, the presumption of scienter granted in favor of the state by R.C. 3719.09 does not apply.
APPEAL from the Court of Appeals for Summit County upon the allowance of a motion for leave to appeal.
James Allen Dempsey was arrested for assaulting a police officer. He was immediately searched, and no weapons were found. He was taken to the police station and booked. While being booked, he was again searched to inventory and safekeep his personal effects. This procedure was followed as to every person who is booked before he enters the jail. The officer searching Dempsey noticed a substance in the debris of Dempsey's jacket pocket. He sent the jacket to a chemical analyst who determined that the substance was marijuana (Cannabis Sativa L). Several particles of marijuana, about 1/16th of an inch in length were found.
When Dempsey came to the courthouse a few days following his arrest to appear on the charge of assaulting a police officer, he was arrested and charged with possession of marijuana. He was again searched at the stationhouse booking desk, and in the debris in his pants pockets were found minute particles which were later identified by chemical analysts as marijuana. At Dempsey's trial for possession of marijuana, the particles found during the second stationhouse search were introduced only as evidence that the defendant had committed similar acts.
R.C. 2945.59 provides, "In any criminal case in which the defendant's . . . intent . . . is material, any acts of the defendant which tend to show his . . . intent . . . in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."
The trial court denied the defendant's motion to suppress the evidence which was found in the defendant's jacket pocket during the search at the stationhouse.
In the charge to the jury, the trial court explained that in order for the defendant to be found guilty, the jury must find that the defendant knowingly possessed marijuana. The jury was also instructed that in order to be found guilty, the defendant must have knowledge of the narcotic nature or use of the substance involved. The trial court then explained that the law presumed, from the mere fact of physical possession of a narcotic drug, that the defendant had the intent to violate the "possession" statute, and that the jury could consider the amount of the narcotic drug actually possessed by the defendant when weighing the presumed fact of the defendant's intent. The instruction concerning the presumption was repeated to the jury in response to a question which arose during the jury's deliberations. The jury found the defendant guilty, and his conviction was affirmed upon appeal.
Mr. James V. Barbuto, prosecuting attorney, and Mr. R. Douglas Paige, for appellee.
Messrs. Yelsky, Eisen Singer, Mr. Leonard W. Yelsky, for appellant.
Defendant challenges the search conducted when he arrived at the stationhouse after his arrest for assaulting a police officer. The evidence indicates that that search was made as a part of the booking procedure. The purpose was to remove Dempsey's valuables and personal effects and to secure them.
A reasonably conducted routine stationhouse search, without a warrant, of a person who is being booked immediately prior to his entering a cell, for the purpose of inventorying and safekeeping his personal effects, is not unreasonable. Such procedure protects the prisoner and his valuables from destruction or loss during his incarceration. It also protects the state and its officers and agents by preventing weapons and contraband from entering the jail. This reasonable police procedure is not violative of any constitutional rights. See Cotton v. United States (9th Cir. 1967), 371 F.2d 385; Baskerville v. United States (10th Cir. 1955), 227 F.2d 454; People v. Ross (1967), 67 Cal.2d 64, 429 P.2d 606; State v. Mark (1966), 46 N.J. 262, 278, 216 A.2d 377; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502; Yarbrough v. State (Okla.Crim.App. 1969), 457 P.2d 826; People v. Rogers (1966), 241 Cal.App.2d 384, 50 Cal. Rptr. 559; People v. Reed (1962), 202 Cal.App.2d 575, 20 Cal. Rptr. 911; People v. Woods (1956), 139 Cal.App.2d 515, 293 P.2d 901.
Defendant also challenges his conviction because the amount of marijuana which he possessed was minute. R.C. 3719.09, provides, in pertinent part: "No person . . . shall have in his possession . . . any narcotic drug. . . . Possession by a person . . . of a narcotic drug . . . is presumptive evidence of intent to violate this section."
Marijuana (Cannabis Sativa L) is a "narcotic drug." See R.C. 3719.01(L)(N).
R.C. 3719.15, excepts small quantities of specific narcotic drugs from the "possession" statute. It does not except small amounts of marijuana (Cannabis). Prior to October 13, 1961, the predecessor statute did except cannabis of a quantity of less than one-half of a grain. (126 Ohio Laws 178, 187.) The repeal of the former statute and the adoption of the present one, persuades us that the General Assembly intended to proscribe the possession of any amount of marijuana, however minute. See, also, State v. McDonald (1966), 92 N.J. Sup. 448, 224 A.2d 18.
However, such conclusion, alone, does not sustain the conviction in this case. A necessary element of the crime of possession of marijuana, which the state must prove, is that the defendant had scienter, or criminal intent. The element of scienter in a narcotics possession case consists of two branches; that the defendant knew that the substance was in his possession, and that he knew the substance was a narcotic. State v. Faircloth (1967), 181 Neb. 333, 337-38, 148 N.W.2d 187; State v. Giddings (1960), 67 N.M. 87, 89, 352 P.2d 1003. See Annotation, 91 A.L.R. 2d 810, section 5. The state's burden to present evidence in support of both branches of the element of scienter is removed by the presumption granted in its favor by R.C. 3719.09. The trial judge instructed the jury that the state should have the benefit of that presumption.
By purporting to make possession "presumptive evidence of intent to violate this section," it is clear that the statute is designed to make unlawful only intentional possession of a narcotic.
While the presumption of intent, contained in R.C. 3719.09 may be lawfully applied under some circumstances, such a presumption is unreasonable unless a rational connection exists between the proven fact (possession) and the presumed facts (knowledgeable possession of a narcotic). Otherwise, the defendant is denied due process of law. Leary v. United States (1969), 395 U.S. 6, 33-37; Tot v. United States (1943), 319 U.S. 463, 466-467. See, also, State, ex rel. Herbert, v. Whims (1941), 68 Ohio App. 39, 46; State v. Smith (Muni. Ct. 1964), 8 Ohio Misc. 148, 150; State v. Schultz (Muni. Ct. 1964), 1 Ohio Misc. 81. Under this standard, statutes which presume scienter from the proven fact of physical possession of a narcotic have been held valid under circumstances in which the necessary rational connection is apparent. See Yee Hem v. United States (1925), 268 U.S. 178.
The only narcotic drug found in this case was a few minute particles which were mixed among the lint and debris of a jacket pocket. The proven fact of physical possession, in this instance, does not have a sufficient rational connection to the presumed fact that Dempsey knew that he possessed the particles to permit the use of a presumption as a substitute for proof of knowledgeable possession of a narcotic beyond a reasonable doubt.
Common experience does not tend to indicate that one knows what is in the linty debris of his pockets. It is just as likely, if not more so, that one has no idea what is hidden there.
The presumption permitted by R.C. 3719.09, therefore, should not have been applied to defendant in this case, and the trial court's instructions to the jury concerning the same were prejudicially erroneous.
In the writer's view, a new trial is warranted on the basis of the evidence of another similar act committed by defendant, from which the jury might reasonably infer scienter. However, a majority of the court disagrees.
The judgment of the Court of Appeals is reversed and final judgment is entered for the defendant.
Judgment reversed.
O'NEILL, C.J., LEACH, DUNCAN and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
HERBERT, J., dissents from the entry of final judgment for defendant.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.