If a person is caught smoking Marijuana with someone else, but the stash does not belong to the first person, legally they should not be charged with a crime.
The law says that possession of marijuana is a crime, but being in the same room as the drug is not. While the distinction may seem to be vague, it may make a difference to an accused if they are able to prove they were merely in the presence of marijuana, but the drug was not theirs.
It is easier yet if the person who did own the stash admits to owning it, which should mean the second person (who did not own the drug but perhaps smoked it) should not be charged with anything. Of course, each case has its unique circumstances and what goes for one case may not fly with the police or courts for another, even if it may be similar in nature.
Anyone caught in the same situation with another person where marijuana is present does, however, run the risk of being charged with conspiracy to possess with the intention to distribute the drug later or conspiracy to commit a prohibited act. That may seem like a stretch if one person admits the drug belongs to them and not the second person present, but from a law enforcement point-of-view, anything can be, and has often been, possible.
A crime does not have to be committed for an individual to charged with conspiracy to possess, or any charge relating to conspiracy, including conspiracy to commit a prohibited act. The prosecution only needs to show that there was intent to commit a crime for the charges to stick, per U.S. Code 18:371.
Conspiracy charges are not like other drug charges because a conspiracy involves agreeing with someone else or a group of people to break the law. Because of the nature of the charge, a prosecutor must then prove several things to secure a conviction, which may include, but are not limited to:
- There was an agreement between two (or more) individuals to violate a federal drug law
- Each party involved in an alleged conspiracy knew about the agreement and opted to take part in violating a federal drug law.
(For a general overview of penalties for marijuana possession, visit Federal laws and penalties)
The most common drug charge filed is being in possession of any controlled substance. Being in possession means the individual charged is: in actual control, custody, care or management of said substance. This implies the person has actual physical possession of the drug, as opposed to constructive possession, which refers to any drug found in a location where an individual had access to or control over. In that particular scenario, a person, even though charged with possession, may be able to challenge that charge by demonstrating they did not have care, control or custody of the substance in question.
Anyone facing a conspiracy charge relating to drugs needs to seek competent criminal defense counsel and find out what his or her options are.