Interviewer: In terms of possession, what is the rule? How much can you have where you won’t be arrested for it?
Michael Munoz: If you are illegally possessing marijuana in Arizona, the legal standard is a usable amount. If you have a usable amount of any drug in your possession, you can be arrested and charged with that crime.
In Arizona, possession of marijuana is any amount less than two pounds that is usable. If you are in possession or found to be in the proximity of more than two pounds of marijuana, then the state can allege that you have the marijuana for sale, and they can allege that you are in possession for sale, because they call that over a threshold. The legal threshold in Arizona for marijuana is two pounds.
Typical Scenario of An Arrest for Possession of Marijuana in Arizona
Interviewer: What’s the typical scenario when someone’s arrested for possession?
Michael Munoz: With possession of marijuana, there are a lot of different scenarios. A very common one is you get pulled over in a traffic stop, maybe a DUI investigation. You get arrested and eventually the cops will search your person before they book you, and they might find marijuana on your body. They might, also, find marijuana in your car. That’s a pretty typical scenario.
Another scenario is an officer stops you while you’re not in the vehicle, and he questions you for multiple different reasons, and in that case, if they do a search of you and they find marijuana on your person, then you can also be arrested for marijuana.
An Individual Can Be Prosecuted For a Usable Amount of Marijuana in Arizona
Interviewer: Will they arrest you for even having a seed or a roach, or do you have to have more than that to be arrested?
Michael Munoz: That’s going to be a very good defense issue. That’s something that a good defense attorney is going to argue, depending on the amount. If it’s a very, very little amount – and I mean very little – we’ll argue it’s not a usable amount.
If you’re just caught with a seed, it’s very unlikely the state’s going to push that case, but if you actually have the leaf or the buds of the marijuana plant in your possession – I’ve seen cases where the corner of a bag had the green leafy substance –the state can still press charges.
Differentiating Between Actual Possession vs. Constructive Possession
Interviewer: What happens if you’re living with someone, and for some reason the police end up coming in and there are drugs in the house, but they’re not yours? Are you still going to be picked up and charged, or what could you do?
Michael Munoz: Being arrested is a possibility in that scenario. When they’re looking to see whether or not you’re in possession, they look to whether or not you’re in actual possession or constructive possession.
Constructive possession is a concept. It might not be on your person, but it’s within your dominion and control – meaning it’s in your house and you have the ability to get to it. To prove that you actually knew it was there, they must show knowledge or intent to possess, and that’s tough for them to do. A lot of the ways we defend those cases is we investigate and we argue where the drugs were found. If they’re not in your room – so if they’re not in your control or your knowledge – you have a much better defense. If they’re in your roommate’s room and nothing’s in your room, that’s a very defensible issue.
Also, whether or not the client makes these statements to the police is always an important factor. If someone’s house was raided, for example, when police do the investigation, regardless of what the suspect thinks, the suspect should always exercise their right to remain silent so that they don’t possibly incriminate themselves.
The Prosecution of an Individual for Possession Depends Upon Various Factors
Interviewer: What about in the car? Is it easier or harder to be accused of constructive possession? What if your friend’s driving, and he’s got weed in the car but you didn’t know about it?
Michael Munoz: I’ve seen lots of cases where the drugs were in a car, but not necessarily on their person. Again, factors that are important: where are the drugs located? Who owns the vehicle? Did the suspects make any statements showing knowledge about the drugs? All of those things are going to be very important factors in defending your case for those types of arrests.