Possession of Drug Paraphernalia Can Be Based on Fake Drugs, as Long as the Defendant Believed Them To Be Real Drugs

Kamonte J. Lesher v. United States (decided December 1, 2016)

Players: Associate Judges Thompson and McLeese, Senior Judge Ruiz. Ian Williams for Mr. Lesher. Trial judge: Truman A. Morrison, III.

Facts: In a search of a row house, officers found several bags containing a "green weed-like substance," $2300 in cash, empty ziplock bags, and a scale.  They found several documents with Mr. Lesher's name in the same room.  Police also searched Mr. Lesher, who was just inside the doorway of that room, and found a green weed-like substance on his person.  There was testimony that the green weed-like substance smelled like marijuana, and that it was packaged in a manner consistent with distribution rather than personal use.

Issue: Does a conviction for possession of drug paraphernalia (PDP) require proof that that defendant actually possessed a controlled substance?

Holding: No. D.C. Code § 48-1103(a)(1) requires only possession of drug paraphernalia with intent to use it in connection with a controlled substance and does not require the presence of a controlled substance, whether actual or fake.  The evidence of the smell of the green weed-like substance, the way in which it was packaged, and the fact that it was hidden supported an inference that Mr. Lesher believed that the substance was marijuana. Testimony from a drug expert supported the further inference that Mr. Lesher intended to use the scale and bags to weigh and package a substance he believed to be marijuana.  This was sufficient to show that the scale and bags were "intended for use" in connection with marijuana, regardless of whether or not the green weed-like substance actually was marijuana.

Of Note:  The Court also held that there was sufficient evidence of constructive possession, the government need not prove that the substance was actually a controlled substance for a conviction of attempted possession with intent to distribute, and that evidence of a field-test performed on the green weed-like substance was, at most, harmless error.  DG

Read full opinion here.