Summary
In Kabat, a tiny amount of residue scraped from the bottom of a pipe in the defendant's apartment had formed the basis for his conviction of possession of marijuana in Manitowoc County.
Summary of this case from State v. SartinOpinion
No. 75-864-CR.
Submitted on briefs February 2, 1977. —
Decided March 1, 1977.
ERROR to review an order of the Circuit Court for Manitowoc County: ALLAN J. DEEHR, Circuit Judge. Reversed.
ERROR to review a judgment of the County Court for Manitowoc County: HAROLD W. MUELLER, County Judge. Dismissed.
For the plaintiff in error the cause was submitted on the briefs of Howard B. Eisenberg, state public defender, and Melvin F. Greenberg, assistant state public defender.
For the defendant in error the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Marguerite M. Moeller, assistant attorney general.
Following a trial to the County Court for Manitowoc County, Thomas R. Kabat was convicted of possession of marijuana in violation of sec. 161.41(3), Stats. Although Kabat had been charged with possession of a bag of marijuana and a pipe containing marijuana, the trial judge found that the bag belonged to someone else and that Kabat possessed only the pipe. Kabat appealed the judgment of conviction to the Circuit Court for Manitowoc County which in an order entered on December 15, 1975, affirmed the judgment of the county court.
At approximately 3:22 a.m. on March 8, 1975, two City of Manitowoc police officers investigated a noise complaint at Kabat's apartment. While one of the officers stood in the doorway to the apartment talking to Kabat, he looked inside where about eight people were milling around and saw a metal smoking device on the table against one wall and a plastic bag containing a vegetable material on a table along the opposite wall. The officer stepped in, seized the pipe and the bag, and told Kabat he was under arrest for possession of what the officer believed to be marijuana. At his apartment and later at the police station, Kabat admitted that the pipe was his but said that the bag belonged to someone else.
At the trial, Cassandra Beckman, a drug identification chemist at the Wisconsin State Crime Laboratory, testified that she had tested the plant material in the bag and the residue from the pipe and concluded that they contained Delta-1 hydrocannabinol, which is a physiologically chemical ingredient of the plant marijuana. She said that from looking at the contents of the pipe with the naked eye and from smelling the contents, she was not able to identify the contents to a scientific certainty. She scraped all the residue from the inside of the pipe and used various portions for different tests. She explained that by residue she meant the residue left in the pipe after it had been smoked. She described the residue as a burnt material, like ashes. When asked the size of the random sample of the residue she had removed from the pipe, she said it was very small. She was unable to express the size of the sample in metric terms except to say that it was less than one-half of a gram.
In his defense, Kabat called as witnesses three persons who attended his party. All testified that they had not seen anyone using the pipe during the party.
Kabat testified that he arrived at his apartment for the party at approximately 1:30 a.m. and that except for the one-half hour he left to try to buy beer he was at the apartment until the policemen arrived. Kabat testified that he had not used the pipe that evening and that he had not used it since cleaning it a couple of weeks before the party. He said he did not know that there was marijuana in the pipe that night and that there should not have been because he had cleaned it. When the prosecutor showed Kabat the pipe, Kabat observed that a screen was missing and said, "I usually clean it a little bit better than that when I clean it." Kabat admitted that a couple of weeks before the party, he had used the pipe to smoke marijuana.
The trial court found Kabat guilty of possessing the marijuana in the pipe after concluding that the bag of marijuana was not Kabat's. The court sentenced Kabat to ten days in the county jail to be released for work during the regular hours of his employment. Kabat appealed to the circuit court which affirmed the conviction. Kabat's sentence has been stayed pending the appeal to the circuit court and to this Court.
The single issue raised on this appeal is whether the evidence was sufficient to support the conviction for possession of marijuana.
To convict an individual of possession of a controlled substance, the prosecution must prove not only that the defendant was in possession of a dangerous drug but also that he knew or believed he was. State v. Christel, 61 Wis.2d 143, 159, 211 N.W.2d 801 (1973).
In this case, the issue is not whether Kabat possessed a controlled substance but whether he knew he did. There is no dispute that the ash in the pipe contained ingredients of marijuana or that Kabat possessed the pipe.
Kabat contends the evidence was insufficient because the amount and form of the drug in the pipe did not permit the trier of fact to infer that Kabat had knowledge of its presence.
In People v. Melendez, 225 C.A.2d 67, 37 Cal.Rptr. 126 (1964), and People v. Aguilar, 223 C.A.2d 119, 35 Cal.Rptr. 516 (1963), California District Courts of Appeal reversed convictions where the quantity and form of the drugs were such that it could not be said their presence reasonably imputed knowledge to the defendants. In Aguilar, a chemist found that scrapings from two spoons contained heroin. In Melendez, a chemist found that a black substance scraped from a bamboo pipe contained active ingredients from marijuana. In Melendez, the court relied on and explained the rationale of Aguilar:
"It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant. (Pp. 122-123.) Accordingly, the essence of the holding in Aguilar is that `[t]he presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' (P. 123; italics added.)" Melendez, supra, at 71 quoting from Aguilar, supra.
In United States v. Jeffers, 524 F.2d 253 (7th Cir. 1975), the court rejected the "usable quantity" doctrine and explained it was not necessary because:
"An adequate instruction on what inferences with regard to a defendant's knowing possession can be drawn from the fact of physical possession of a controlled substance in such circumstances solves the problem without reference to the `usable quantity' doctrine." Jeffers, supra, at 257.
The Seventh Circuit then quoted with approval the statement from Aguilar that the awareness of the defendant of the presence of the narcotic, not scientific measurement and detection, is the ultimate test of the known possession of a narcotic.
In the instant case, the pipe contained less than one-half of a gram of ash material. Under the circumstances the case it cannot be said that the presence of the narcotic was reflected in such a form as reasonably imputed knowledge to Kabat that it was marijuana. Melendez, supra, at 73. A lay person could not be expected to know whether the burnt material in the pipe still contained ingredients of the controlled substance. Melendez, supra, at 69-70, n. 4. Accordingly, a finding that Kabat "possessed" marijuana is not warranted within the requirement of knowing possession, and the evidence is not sufficient to sustain a conviction of knowing possession of the narcotic.
This result does not overrule Fletcher v. State, 68 Wis.2d 381, 384-85, 228 N.W.2d 708 (1975), or State v. Dodd, 28 Wis.2d 643, 651, 137 N.W.2d 465 (1965), which rejected the "usable amount" test and held that possession of a modicum of an illegal drug is sufficient to bring the defendant within the purview of the statute.
This case holds only that the amount and form of the substance found in the pipe is not sufficient to impute to Kabat knowledge that the substance contained ingredients of marijuana.
The State has pointed out that Kabat obtained not only a writ of error to review the order of the circuit court but also a writ of error to review the judgment in the county court; and correctly notes that the error to review the judgment should be dismissed.
By the Court. — The order of the circuit court is reversed, with directions to dismiss the complaint. The writ of error to review the judgment of the county court is dismissed.