Mar 21, 2024

21 U.S.C. § 844 – Simple possession of controlled substance

Federal Simple Possession: Why 21 U.S.C. § 844 Hits Different

If you’ve been charged with simple possession of a controlled substance under federal law, you’re probably confused. Maybe you got arrested in a national park, at an airport, or somewhere else you didn’t expect federal agents. This can be very scary, but if you understand what makes federal possession charges unique – it’ll help you respond appropriately.

Simple possession under 21 U.S.C. § 844 means knowingly having a controlled substance without a valid prescription. Sounds straightforward, but federal possession operates in a completely different world from state charges. In this article, we’ll explain what prosecutors need to prove, why federal charges carry heavier consequences than state ones, and what defenses might work. Regardless of whether you think it was just a small amount, or believe you were legally allowed to have it, it’s crucial you understand these charges require immediate legal help.

What Simple Possession Actually Means Under Federal Law

Definition: 21 U.S.C. § 844 makes it illegal to “knowingly or intentionally possess a controlled substance” without legal authorization. It’s a signal that you’ve crossed into federal territory – literally or figuratively – and federal prosecutors think they can prove you had drugs.

The government has to prove three things: first, that you possessed a controlled substance (anything from marijuana to cocaine to unprescribed Xanax). Second, that you knew you had it. Third, that you didn’t have legal authorization like a valid prescription. Simple enough, except federal law interprets “possession” broadly.

You don’t need drugs in your pocket. “Constructive possession” means controlling the space where drugs are found – your car, your hotel room, even a friend’s apartment if prosecutors can show you had access and knew drugs were there. Multiple people can “possess” the same drugs under this theory.

The statute covers every controlled substance in the federal schedules. That includes obvious illegal drugs, but also prescription medications without proper documentation. Got your spouse’s Adderall in your bag? That’s technically federal possession. The amount doesn’t matter for the basic charge – one pill or one ounce, it’s the same statute.

What triggers federal rather than state prosecution usually comes down to where you were arrested. Federal property, border areas, airports, national parks – these are federal jurisdiction. Sometimes it’s about crossing state lines or federal investigation priorities. Most drug possession gets handled in state court, but when the feds are involved, everything changes.

Why Federal Jurisdiction Makes Everything Complicated

Legal Authority: Congress passed the Controlled Substances Act in 1970, creating federal drug crimes under the Commerce Clause power. The Supreme Court has upheld this authority even for purely local possession (Gonzales v. Raich, 2005).

Federal agents who might arrest you include DEA, FBI, Border Patrol, ICE, Park Rangers, federal protective service, even postal inspectors. Each has different priorities, but all can charge possession.

Where Federal Law Applies: This is where it gets tricky. Obviously federal buildings and military bases are federal jurisdiction. But so are national parks and monuments – where many possession arrests happen because visitors forget park boundaries don’t follow state law. Airports are federal jurisdiction for drug crimes. Border checkpoints extend up to 100 miles inland. Federal officers can also adopt state arrests into federal system if they choose.

The weird part is you can be doing something legal under state law but illegal federally. States with legal marijuana create the starkest example. Buy it legally in Denver, drive into Rocky Mountain National Park, suddenly you’re committing a federal crime. Your state medical marijuana card means nothing to federal agents.

This patchwork jurisdiction creates trap situations. That TSA checkpoint where you forgot about the edible in your bag? Federal crime. The VA hospital where you brought your prescribed-but-not-to-you anxiety medication? Federal crime. Understanding where federal law applies matters more than what state law says.

Federal vs. State Possession: Not Even Close

Federal Possession vs. State Possession:

Start with the basics – federal possession is usually a misdemeanor (up to one year) for first offense. Many states treat first-time possession similarly. So why does federal hit so much harder?

Resources and Approach: Federal prosecutors have essentially unlimited resources compared to overworked state DAs. They pick cases carefully and prosecute aggressively. In contrast, state prosecutors handle thousands of possession cases and often offer diversion programs, drug court, or quick plea deals. Federal prosecutors rarely offer these alternatives.

Criminal Records: Here’s a huge difference – federal convictions can’t be expunged. Ever. Many states allow sealing or expunging drug convictions after you complete probation. Not federal court. That conviction stays on your record permanently, showing up on every background check forever.

Sentencing: Federal judges use Sentencing Guidelines that limit discretion. Prior convictions, even old state ones, increase guideline ranges. By comparison, state judges often have more flexibility. Federal supervised release (like probation) tends to be longer with stricter conditions.

Collateral Consequences: Federal convictions trigger unique problems. Immigration consequences are severe – even legal permanent residents face deportation for drug convictions. Federal student aid used to be automatically suspended (recently changed but still complicated). Security clearances become impossible. Professional licenses are at risk.

Mandatory Minimums: If you have prior drug convictions, federal law imposes mandatory minimum sentences. One prior = minimum 15 days. Two or more = minimum 90 days. Judges can’t go below these, period. State courts rarely have mandatory minimums for simple possession.

The combination makes federal possession charges disproportionately serious compared to state charges for the same conduct.

REAL CONSEQUENCES, REAL SOLUTIONS

Federal drug charges are very scary. The stakes are very high: up to one year prison (though some substances carry higher maximums), thousands in fines and fees, three years of supervised release, permanent criminal record, immigration consequences for non-citizens, and employment problems forever. That’s why you need a law firm willing to go the distance.

Unlike state court where you might know the prosecutors and judges, federal court is formal and intimidating. The U.S. Attorney’s office has conviction rates over 95%. They don’t prosecute cases they might lose. But that doesn’t mean your case is hopeless – it means you need lawyers who understand federal practice.

NYC CRIMINAL ATTORNEYS YOU CAN TRUST WITH YOUR LIFE.

Our attorneys have handled federal cases for years, featured on major news outlets, from the NY Post to Fox 5. We’ve represented clients in high-profile matters like the Anna Delvey case, but we treat every single client with the same level of dedication.

Federal court isn’t state court with fancier furniture. The rules are different, the stakes higher, the prosecutors more prepared. We know the judges, understand the guidelines, and most importantly – we know how to find weaknesses in federal cases. We are available 24/7 because federal agents don’t keep business hours.

SOME PRACTICAL TIPS

Don’t Talk to Federal Agents They’ll seem friendly and say they just want to clear things up. Don’t fall for it. Politely decline and ask for a lawyer. Federal agents are trained interviewers who will use everything you say against you. “I didn’t know it was illegal” is a confession, not a defense.

Preserve Everything Don’t delete texts, emails, or social media posts – that’s potential obstruction of justice. Instead, screenshot everything relevant. Document where you were arrested, who was present, what was said. Your phone’s location data might prove you weren’t on federal property.

Get Your Prescriptions in Order If you have valid prescriptions for any controlled substances, locate the documentation immediately. Federal courts require strict proof of legal authorization. The bottle isn’t enough – you may need pharmacy records or doctor verification.

Understand Bail Conditions Federal pretrial release often includes drug testing. A positive test violates release conditions and can land you in detention pending trial. If you have addiction issues, be honest with your attorney so they can seek appropriate conditions.

Legal Representation and Defense Strategies

Hire an Experienced Federal Defense Attorney: State court experience doesn’t translate to federal court. You need someone who knows federal prosecutors, understands sentencing guidelines, and has tried cases before federal judges. Federal cases move fast – initial appearances happen within days of arrest.

Early Investigation Matters: Your attorney should immediately investigate how federal agents got involved. Was it a random encounter or targeted investigation? Understanding the origin often reveals defenses. Federal agents make mistakes too – illegal searches, exceeding jurisdiction, or improper procedures can sink their case.

Common Defense Strategies:

Fourth Amendment Challenges: Many federal possession cases involve questionable searches. Airport searches, traffic stops, border checkpoints – each has specific constitutional limits. If agents violated your Fourth Amendment rights, the evidence gets suppressed. No drugs in evidence = no case.

Lack of Knowledge: The government must prove you knew you possessed illegal drugs. If someone else’s drugs were in a shared space, or you didn’t know pills were controlled substances, that’s a defense. Constructive possession cases are especially vulnerable to knowledge challenges.

Jurisdictional Defenses: Federal jurisdiction isn’t automatic. Your attorney should verify the exact location of arrest and whether federal law actually applied. We’ve won cases where clients were arrested just outside federal property or where agents exceeded their authority.

Negotiation and Alternatives: While federal court offers fewer diversion programs than state court, options exist. Safety valve provisions for first-time offenders, cooperation if you have information about other crimes (carefully considered), or arguing for prosecution deferral. Sometimes prosecutors will dismiss if there are proof problems or minimal federal interest.

Your attorney should prepare for trial while pursuing negotiations. Federal prosecutors hate losing at trial – it affects their stats and reputation. A credible trial threat often produces better plea offers. But be ready to follow through – federal trials require extensive preparation.

FREQUENTLY ASKED QUESTIONS

Q1: Can my medical marijuana card protect me in federal court?

No. Federal law doesn’t recognize state medical marijuana laws at all. Marijuana remains Schedule I federally – “no accepted medical use.” Your state card provides zero defense in federal court. However, current DOJ policy generally avoids prosecuting state-compliant medical users unless other factors exist (federal property, large amounts, weapons). But policies change with administrations.

Q2: What’s the difference between possession and intent to distribute?

Possession is for personal use. Intent to distribute means drugs for sale. Prosecutors infer intent from circumstances – quantity, packaging, paraphernalia like scales or baggies, large amounts of cash, or messages about sales. The stakes differ dramatically. Simple possession is usually misdemeanor (up to one year). Distribution charges carry years or decades. Prosecutors often overcharge distribution to force pleas.

Q3: Can I ever get a federal conviction off my record?

Basically no. Federal law has no expungement statute for valid convictions. Presidential pardons exist but are extraordinarily rare. Your conviction will appear on background checks forever. This permanence is why fighting charges matters so much. Some limited relief exists through certificates of rehabilitation, but the conviction remains.

Q4: How do prior convictions affect federal possession charges?

Drastically. The statute imposes mandatory minimums based on prior drug convictions (including state convictions). One prior = 15 days to 2 years. Two or more = 90 days to 3 years. These are mandatory – judges cannot go below regardless of circumstances. Prosecutors must file special notices to trigger these enhancements, which becomes a negotiation point.

Federal possession charges might seem minor compared to trafficking or distribution. They’re not. The permanent record, immigration consequences, and collateral damage often exceed the actual sentence. These cases demand immediate, experienced federal defense representation.

We stand by our clients through every phase – from initial appearance through trial or plea. Federal court is intimidating by design, but you don’t face it alone. Contact us immediately. Time matters in federal cases, and early intervention makes all the difference.

21 U.S.C. § 844 – Simple possession of controlled substance