Possession — What the Charge Actually Means
In forty-five years of practicing law in Mississippi, I have represented a lot of people charged with drug possession. Some were college students. Some were grandfathers. Some were people who had been clean for years and made one bad decision on one bad night. The thing many had in common is that, when they walked into my office, they had no idea what they were actually charged with — just that the police had found something, and the paperwork said, “possession of a controlled substance.”
Mississippi possession law is laid out in Section 41-29-139 of the Mississippi Code. It is one of the more complicated criminal statutes in the state, and the consequences depend on three things: 1). what the drug is, 2). how much of it there was, and 3). whether the person has a prior record for drugs. Let me walk you through the basics.
What “possession” actually means.
Most people assume “possession” means the drugs were in your hand or your pocket. That is one form the law calls actual, physical possession. But Mississippi recognizes constructive possession, which means the drugs were somewhere you had control over and knew the drugs were there, such as the glove box of your car, the nightstand by your side of the bed, your backpack in your closet.
The key word in both versions is knowing. The State has to prove, beyond a reasonable doubt, that you knew the drugs were there. That sounds simple. In practice, it is the single most contested issue in a lot of possession cases — because drugs found in a shared apartment, a borrowed car, or a hotel room with three other people can belong to any of them, and the State does not get to guess.
Let me give you a couple of quick interesting stories from actual trials. In the first case a middle-aged man picked up two “exotic dangers” at a club. He took them back to their apartment to party. When they got to the apartment, they asked to use his Corvette to go buy beer. They left and did not return for several hours. When they returned he was furious. He took his keys and left. While he was driving home early in the morning he was stopped by law enforcement. The law enforcement officer shined his flashlight in the passenger side and on the floor was a white quarter sized piece of crack. The man was charged with possession of crack cocaine. Due to the size of the crack, the man was facing a substantial prison sentence. Coxwell & Associates was successful in that case because the prosecution could not prove knowledge.
In the second case a young man was in a room with a prostitute. They were getting undressed to engage in sex. At the moment when the client was in his underwear police busted into the room. The prostitute three drugs to the man. Drugs he did not know she possessed. Out of fear he stuffed them into his underwear. The drugs were found and he was indicted. Coxwell & Associates tried that case and the jury could not agree on a verdict. The prosecutor decided it was not worth the effort to have another trial so the charges were dropped. Our defense was not the strongest, but we argued the client knew nothing of the drugs until they were thrown to him and his reaction to hide them was “natural.” The lack of knowledge convinced some of the jury.
The drug schedules — a quick map.
Mississippi divides-controlled substances into five schedules, and the schedule is the single most important factor in deciding what penalty you face. Here is a working overview, with examples rather than an exhaustive list.
Schedule I is reserved for drugs the Legislature considers having no accepted medical use and a high potential for abuse. Heroin, LSD, ecstasy (MDMA), and — still, despite the Medical Cannabis Act — most non-medical marijuana falls here.
Schedule II covers drugs with a high potential for abuse but some accepted medical use. This is where the felony exposure starts in earnest in most possession cases. Cocaine, methamphetamine, fentanyl, oxycodone (OxyContin, Percocet), hydrocodone, and Adderall.
Schedule III includes substances with a moderate potential for abuse — anabolic steroids, ketamine, and certain combination products containing limited amounts of codeine.
Schedule IV includes the drugs most often found in a parent’s or grandparent’s medicine cabinet: Xanax (alprazolam), Valium (diazepam), Klonopin (clonazepam), Ambien, and Tramadol. The fact that these are commonly prescribed does not mean they are legal to possess without a valid prescription.
Schedule V is the lowest tier and includes preparations with limited amounts of certain narcotics, like cough syrups containing small quantities of codeine.
How the penalties are built.
Within each schedule, Mississippi grades the offense by weight (for substances measured in grams) or by dosage units (for pills, tablets, and capsules). The general pattern is straightforward: the higher the schedule and the larger the amount, the more serious the charge.
A small amount of a Schedule I or II drug — less than one-tenth of a gram of cocaine, or fewer than ten Adderall pills without a prescription — is a felony, but at the lower end of the felony range, with a sentence the judge has flexibility to suspend. A larger amount — say, several grams of methamphetamine, or a substantial quantity of oxycodone pills — carries significantly more prison exposure. Once the weight crosses certain thresholds (thirty grams or forty dosage units of a non-marijuana Schedule I or II drug), the charge can be enhanced to trafficking, which I will cover in a later post and which carries mandatory time.
Schedule III, IV, and V drugs follow the same pattern but with lower penalty ranges. A handful of Xanax pills without a prescription is still a felony in Mississippi — a fact that genuinely surprises a lot of clients — but the maximum exposure is well below what cocaine or methamphetamine would carry.
Marijuana — different rules, including in your car.
Marijuana is treated separately within the statute. Possession of thirty grams or less is a misdemeanor for a first offense, with a fine of $100 to $250 and no jail time. A second conviction within two years carries five to sixty days in the county jail; a third within two years can mean up to six months. Keep this in mind: Any object you use to carry marijuana, or to consume it is paraphernalia. The punishment for paraphernalia is up to six (6) months in jail and a $1,000.00 dollar fine or both. Most of the local prosecutors are not charging paraphernalia to increase the fine and jail time, and they also believe it keeps them from needing a lab analysis for the marijuana.
There is a wrinkle that surprises drivers, and it is one of the most common charges I see come out of routine traffic stops. Under Section 41-29-139(c)(2)(A), if you are the driver of a vehicle and you have more than one gram (but no more than thirty grams) of marijuana — either on your person or anywhere in the area of the vehicle normally occupied by the driver or passengers — the charge becomes a misdemeanor punishable by up to ninety (90) days in the county jail and a fine up to $1,000. The trunk does not count, and if your car has no trunk, the areas not normally occupied by the driver or passengers do not count either. So the same eight grams of marijuana that would draw a $250 fine sitting on your kitchen counter can put you in jail for ninety days if it is sitting in your console. Moral of the story: Keep you marijuana in the trunk, maybe?
Larger amounts of marijuana — above thirty grams — move into felony territory, with penalties scaled by weight up to five kilograms and beyond.
Paraphernalia.
Section 41-29-139(d) makes it a misdemeanor to possess paraphernalia used to plant, grow, manufacture, ingest, or conceal a controlled substance. Maximum penalty: six months in jail county and a $500 fine. The statute also says you cannot be charged with paraphernalia at the same time you are charged with possession of thirty grams or less of marijuana under (c)(2)(A) — the State has to pick one. That is a small but important detail in a lot of routine possession cases.
If it is your first time — deferred adjudication and expungement.
Mississippi gives first-time drug offenders a meaningful path to keeping a conviction off the record. Under Section 41-29-150, a judge has the discretion to defer entry of a judgment of guilt, place the person on probation for up to three years, and — if the conditions are completed successfully — dismiss the charge. There is no public conviction. The arrest and the charge can then be expunged.
Even where deferred adjudication is not available, Mississippi allows expungement of a single felony conviction for possession under Section 41-29-139(c) or paraphernalia under (d), five years after successful completion of the sentence. Section 99-19-71(2)(a). One per person, in a lifetime — but for many young people, that one is the difference between a job offer and a closed door. We hope in the future that we can lower the time for expungement so people do not have to wait so long.
Common defenses.
Every case is different, and what is a defense in one case is irrelevant in another. But three issues come up over and over.
The first is the search itself. The Fourth Amendment protects you against unreasonable searches and seizures, and a great many possession cases turn on whether the officer had a lawful basis to look in the place where the drugs were found. A traffic stop that lasted longer than the law allows. A consent that was not actually given. A search of a passenger’s purse without probable cause. If the search was unconstitutional, the drugs are inadmissible, and without the drugs the State has no case.
The second is knowing possession. Drugs found in a shared space — a car with three other passengers, a house with multiple residents, a hotel room with a friend — are not automatically yours just because you were nearby. The State has to prove you knew. My experience shows me this: In small drug cases the law enforcement officer will ask “Who admits to the drugs?” If someone admits to it, the officer will often only arrest that person. However, in bigger drug arrests law enforcement officers will often arrest everyone on a conspiracy charge and possession. They feel this gives the prosecutor more leverage.
The third is the lab. Mississippi cannot convict you of possessing cocaine without a forensic chemist confirming, under oath, that the substance was cocaine and that it weighed what the indictment says it weighed. Lab errors happen. Chain-of-custody breaks happen. A defense lawyer who does not push on the lab is leaving money on the table.
A word about federal cases.
What I have written above is Mississippi state law. If you are charged with possession in federal court — most often because the case involves interstate distribution, the rules and the penalty structure are different, and they are generally harsher. There are several mandatory minimum sentences in Federal Law. You also must understand the Federal Sentencing Guidelines, and the Safety Value. If you have been told you are facing federal charges you need a lawyer who handles federal practice.
Bottom line.
If you or someone in your family has been charged with possession in Mississippi, the most important thing you can do is this: DO NOT DELAY. Visit an attorney with real experience. Don’t consent to anything else. Possession charges, especially first-offense possession charges can sometimes be treated differently if the attorney gets involved in the case right after arrest. The attorneys at Cowell & Associates, PLLC have produced some exemplary results when they have been able to get involved in a possession case early after the arrest. But that depends on getting in front of a lawyer before the case has had a chance to harden.
In the next post in this series, I will walk through the next step up: sale, transfer, and manufacturing under Section 41-29-139(a) and (b).
Forty-five years and counting.