CDS
Possession- Misdemeanor
Statute
CR § 5-601. Possessing or administering controlled dangerous
substance
(a) In general. -- Except as
otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice.
Elements Checklist
From Pattern Criminal
Jury Instruction 4:24
- The defendant knowingly possessed the substance
- The defendant knew the general character or illicit nature of the substance
- The substance was (specified controlled dangerous substance).
Necessary witnesses
Where “notice of availability” letter has been mailed/delivered 10 days before trial and there has been no written request for chain of custody & chemist by the defendant 5 days before trial:
- Witness placing specified item(s) of CDS in defendant’s possession
o Generally a combination of the observing officer & the recovering officer (but may also be a witness who observed the CDS recovery)
- Chain of custody up to the point where the CDS was submitted
- Probable cause witness (as required)
CJP §10-1001 & 10-1002
Where there has been no “notice of availability” letter 10 days before trial OR there has been a request for chain of custody and chemist by the defendant 5 days before trial:
- Witness placing specified item(s) of CDS in defendant’s possession
- Chain of custody up to the point where the CDS was submitted
- (probable cause witness as required)
AND
- Seizing officer
- Packaging officer, if the packaging officer is not also the seizing officer
- Chemist
- Other person who actually touched the substance and not merely the outer sealed package before or during the analysis
- NOT required to produce a person who handled the substance after analysis.
CJP § 10-1001 to 10-1003
Sentence
Not marijuana: 4 years or a fine not exceeding $ 25,000 or both. CR § 5-601(c)(1)
Marijuana: 1 year or a fine not exceeding $ 1,000 or both. CR § 5-601(c)(2)
- The Defendant may mitigate at sentencing (for marijuana only) by proving medical necessity. If the Court finds that medical necessity does exist, the maximum penalty is $100. CR § 5-601(c)(3)
Quick Questions
What do I do if my chemist is unavailable? (CJP §10-1001, 1003)
If there was no chemist demand made at least 5 days before trial and we sent them the chemical analysis availability letter at least 10 days before trial, there’s no problem. The LIMS report is prima facie evidence that the submitted items were whatever the LIMS shows.
What do I do if my recovering officer is unavailable? (See p. _______)
You can get by with using another witness who observed the recovering officer recover the cds. It’s not great, but depending on your judge you should be fine so long as the witness can establish that the recovering officer didn’t have cds in his hand before the search, that the recovering officer would not have been in a position to plant evidence without being seen, and that the observing witness observed the cds as it was recovered from a specified place.
What do I do if my packaging officer is unavailable? (See p. _______)
If someone observed the packaging officer package the cds, just have them testify.
If nobody observed the packaging, then best case: You need the recovering officer, whoever handed the packaging officer the cds, the person who the packaging officer handed the packaged cds to when he was done packaging it, the chemist, and the actual cds.
If you had to: You might be able to get by with just using the recovering officer, the chemist, and a photo of the cds.
You need to show a reasonable probability that the cds was not tampered with from the time of recovery until it was analyzed.
To do this, you can have the recovering officer testify as to the characteristics of the item(s) he recovered (18 red top vials, 3 zips of rock with batman symbols, etc) and the chemist testify that these characteristics matched the items she analyzed. Each should testify that the photo/cds was what they recovered/analyzed. If they can’t do this, you have a problem. If the items weren’t at least a little unique in either quantity/appearance, you may also have a problem.
Then you need to further discount the possibility of tampering by accounting for the amount of time that the cds was in the packaging officer’s custody.
What do I do if my submitting (non-packaging) officer is unavailable? (See p. ________)
If there was a demand for chain of custody, you should be fine with the recovering officer, packaging officer, chemist, and actual cds (or at least a photo). Have each testify that the cds was what they handled/analyzed.
What do I do if the defendant argues that he had a prescription? (See p. _______)
The burden is on the defendant, not the State, to show he falls into the exception.
How do I show constructive possession?
What are factors to show joint possession? (no factor dispositive) (See p. ___________)
(1) proximity (2) plain view (3) ownership/right where found (4) sign of mutual enjoyment
Relevant Background
In 1974, the General Assembly introduced CJP § 10-1001 et seq. in order to allow CDS analyses into evidence without requiring the presence of the chemist or those in the chain of custody. The original set out largely the same procedural requirements as the present statute.
In 1987, the Court of Special
Appeals in Parker v. State, 72
In response to Parker, the
legislature amended § 10-1002 effective July 1, 1988 so that the definition of
"chain of custody" included only those persons who actually handled
the CDS, not those who merely handled the packaging. See Wilkinson v.
State, 78
The floor report for the 1988
amendment observed that police personnel who only deliver or have temporary
custody of a sealed package are not in a position to alter the substance and
are not necessary witnesses. See Thompson v. State, 80
Chain of Custody and the Chemist – Overview
of §10-1001 et seq.
Courts And Judicial Proceedings §10-1001 et seq. provide a “shortcut” to admitting a LIMS or other chemical analysis report as prima facie (but refutable) evidence that the item submitted was the specified type of CDS and that the chain of custody was proper.
In order to obtain this “shortcut,” it is necessary that the State comply with certain standards:
- A copy of the report/statement must be made available to defendant at least 10 days prior to the introduction of the report/statement at trial. CJP § 10-1003(a)(3).
- The report must be signed/certified by the chemist as set out in § 10-1001.
- The chain of custody must have identifying information regarding the property submitted and contain the signatures of each person as set out in § 10-1002.
Even if this is done, the Defendant can file a written request to the State at least 5 days before trial requiring that it produce the chemist and those in the “chain of custody.” § 10-1002(a) defines the “chain of custody” which the State is required to produce (with some caveats) as:
- The seizing officer
- The packaging officer
-
The chemist or other person who actually touched the
substance and not merely the outer sealed package in which the substance was
placed by the law enforcement agency before or during the analysis of the
substance
If the State fails to meet these requirements, it is merely returned to the standard manner of proof in criminal cases. See Best v. State, 79 Md. App. 241, 254 (1989) (“There is not the remotest suggestion of any legislative intent to make the admissibility of evidence or the proof of a chain of custody more difficult than it had been before the passage of [§10-1001 et seq.].”).
In the event that the shortcut does
not apply, the chemist must be called along with the chain of custody
(generally the recovering officer, packaging officer, submitting officer, and
anyone else who handled the actual drugs before they were analyzed). The State only
has to prove that there is a reasonable
probability that the item was not tampered with.
§10-1001 and the Chemical Analysis Report
CJP §10-1001
A report signed by the chemist or
analyst who performed the test or tests as to its nature is prima facie evidence, without the
analyst personally appearing in court, that:
o the material delivered to the analyst was properly tested under procedures approved by the Department of Health and Mental Hygiene
o those procedures are legally reliable
o the material was delivered to the analyst as stated by the person in the report
o the material was or contained the substance therein stated
The report must:
o identify the chemist or analyst as an individual certified by the Department of Health and Mental Hygiene, the Department of State Police, the Baltimore City Police Department, or any county police department employing analysts of controlled dangerous substances, as qualified under standards approved by the Department of Health and Mental Hygiene to analyze those substances
o state that the chemist or analyst made an analysis of the material under procedures approved by that department
o state that the substance, in the opinion of the chemist or analyst, is or contains the particular controlled dangerous substance specified.
Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumptions raised by the report.
Ҥ 10-1001 does not require
the admission of a chemical analysis report. The statute simply recognizes that
chemical analysis of drugs is reliable evidence and creates a statutory
exception to the hearsay rule by providing that it is not necessary to produce
the chemist who performed the test to testify to its accuracy in every trial
where a chemical analysis conducted by a qualified person under approved
procedures has been submitted.” Best v. State, 79
The requirement of certification alluded to in § 10-1001
only applies when the chemist does not
appear in court to testify. Rice v. State, 89
§10-1002 and the Chain of Custody
CJP §10-1002
A statement signed by each
successive person in the chain of custody that the person delivered it to the
other person indicated on or about the date stated is prima facie evidence that
the person had custody and made the delivery as stated, without the necessity
of a personal appearance in court by the person signing the statement. (b)(1)
The statement must:
o contain a sufficient description of the material or its container so as to distinguish it as the particular item in question (b)(2)
o state that the material was delivered in essentially the same condition as received.(b)(2)
The “chain of custody” means:
o The seizing officer (a)(1)(i)
o The packaging officer, if the packaging officer is not also the seizing officer (a)(1)(ii)
o The chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency before or during the analysis of the substance (a)(1)(iii)
o "Chain of custody" does not include a person who handled the substance in any form after analysis of the substance. (a)(2).
Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the statement. (b)(4)
§10-1003 - Presence of chemist or analyst at criminal proceeding
CJP §10-1003
In order to obtain the benefit of §10-1001 and 1002:
o a copy of the report or statement to be introduced must be mailed, delivered, or made available to counsel for the defendant or to the defendant personally when the defendant is not represented by counsel, at least 10 days prior to the introduction of the report or statement at trial. (a)(3)
Where the Defendant files a written demand in the proceedings at least 5 days prior to a trial in the proceeding:
o The State shall require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. (a)(1).
o The provisions of §§ 10-1001 and 10-1002 of this part concerning prima facie evidence do not apply to the testimony of that witness.(a)(2)
Nothing contained in this part shall prevent the defendant from summoning a witness mentioned in this part as a witness for the defense. (b)
State’s Requirement to inform Defendant
Where the State notified the Defendant that they would be calling
the chemist at trial, the State could not then rely on §10-1001 without
notifying the defendant of their changed intent at least 10 days before trial. Knight
v. State, 41
Defendant’s Basis for Requesting Chemist
“A particular defendant may invoke his legislative command
because of a firm belief that he can successfully refute or cast doubt upon the
allegations made, or he can demand that the witnesses appear for no other
reason than to drag out the trial and inconvenience everyone involved. The
latter scenario, we agree, was not intended by the Legislature's effort to
protect a defendant's right of confrontation in drug cases, but abuse of the process
unquestionably remains.” Thompson v. State, 80
When The Shortcut Does Not Apply
There are three distinct manners in which the State may lose the evidentiary shortcut of §10-1001 et seq:
1) Where the State decides to call a witness
2) Where the State does not comply with the notice/technical requirements of §10-1001 et seq.
3) Where the Defendant makes a request for specific witnesses
1) Where the State decides to call a witness
If there is a question about whether the analysis accurately describes the item seized, it’s probably best to call the chemist in to testify. §10-1001 provides prima facie evidence, but it can be rebutted by contraverting testimony.
The requirement of certification alluded to in § 10-1001
only applies when the chemist does not appear in court to testify. Rice v. State, 89
§10-1001 et seq. “applies only when the chemist or analyst
does not testify at trial.” Lester v. State, 82
2) Where the State fails to comply with §10-1001 et seq.
The cure for a State violation of §10-1001 et seq. is the
production of the live witness rather than merely the production of the
chemist's written analysis. Best v. State, 79
3) Where the Defendant makes a request for specific witnesses
- The Defendant is NOT entitled to have the State call everyone who touched the CDS (packaged or unpackaged) to the stand. See §10-1002(a), §10-1003(a)
- If the Defendant files written notice at least 5 days before trial, they are entitled to have the State call (as a State witness) the seizing/recovering officer, the packaging officer, the chemist, and anyone else who handled the actual CDS before or while it was analyzed (exceptions noted below). §10-1002(a)(1)(iii), §10-1003(a)(1)
-
State not absolutely
required to call all chain of custody witnesses specified in §10-1002
§10-1003 is not a technical rule etched in stone requiring
either the production of three live witnesses or forfeiture of the evidence
upon which the prosecution is founded. Thompson v. State, 80
§10-1003 means that where a necessary witnesses capable of
submitting to direct and cross-examination can be produced, the State has the
duty to present them in court. However, the State cannot produce an adjudicated
lunatic, a comatose patient or one who is deceased. §10-1003 was not intended
to be an exclusionary rule. Thompson v. State, 80
Even where the witness is not unavailable, the State
fulfills its obligation where another witness who observed that portion of the
link testifies. Best v. State, 79
Where an item of evidence is jointly possessed by two
people, it is only necessary for one of them to testify; as long as one of the
joint possessors testifies and that testimony negates the possibility of
tampering, it alone is adequate to prove the chain of custody under §10-1003. Lester
v. State, 82
Where the State cannot produce a witness required by
§10-1003, sufficient where State is placed in the same place it was before
§10-1001 et seq. were promulgated. Thompson v. State, 80
Proving Chain of Custody
When the defendant, pursuant to § 10-1003, demands the
production of certain witnesses, the State may not resort to the documentary
shortcuts but must follow routine practice. Where this occurs, the State is no
better off than it was before the 1974 statute eased its burden of production.
In no event, however, is the State in a more difficult position than it had
been in prior to the 1974 statute. Best v. State, 79
The proponent of a particular tangible item of evidence must
establish its "chain of custody," i.e., must account for
its handling from the time it was seized until it is offered into evidence. The
circumstances surrounding the safekeeping of the item of evidence during that
time need only be proven as a reasonable
probability; in most instances established by responsible parties who can
negate a possibility of 'tampering' and thus preclude a likelihood that the
thing's condition was changed." Jones v. State,
172
Where an item of evidence is jointly possessed by two
people, it is only necessary for one of them to testify to prove the chain of
custody. Lester v. State, 82
It is clear that the Legislature never intended that
couriers should be part of the chain of custody. Wilkinson v. State, 78
Lester v. State, 82
Best v. State, 79
Levine v. State, 93
Possession
Under the CDS statute, "possess" means to exercise actual or constructive dominion or control over a thing by one or more persons. CR § 5-101(u)
Article 27, § 277(s), of the Maryland Annotated Code defines
possession as "the exercise of actual or constructive dominion or control
over a thing by one or more persons." The duration of the possession is
not material, neither is it necessary to prove ownership by title. Folk v.
State, 11 Md.App. 508, 511, 275 A.2d 184 (1971). It is necessary to establish
that the defendant had knowledge of the presence and illicit nature of the
drugs; however, such knowledge may be proven by the circumstances. Dawkins v. State, 313
This Court, in Folk, supra, examined various cases in which joint possession
was found to exist. [***15] In analyzing these cases, we observed:The common thread running through all of these
cases affirming joint possession is 1) proximity between the defendant and the
contraband, 2) the fact that the contraband was within the view or otherwise
within the knowledge of the defendant, 3) ownership or some possessory right in
the premises or the automobile in which the contraband is found, or 4) the
presence of circumstances from which a reasonable inference could be drawn that
the defendant was participating with others in the mutual use and enjoyment of
the contraband.
Cook v. State, 84
ACTUAL OR
CONSTRUCTIVE POSSESSION
Constructive
possession
Where defendant 1 of 8 people in house, sufficient to convict where
Control" of CDS means exercising a
"restraining or directing influence over" the item allegedly
possessed. For the State to prove that the defendant had control over
the drugs, the evidence must show directly or support a rational inference that
the defendant did in fact exercise some dominion or control over the prohibited
drug in the sense that he exercised some restraining or direct influence over
it.
Moye v. State, 369
mere proximity to the drug, mere presence on the property
where it was located, or mere association, without more, with
[**863] the person who does control the drug or property on which
it is found, is insufficient to support a finding of possession."
White v. State, 363
Sufficient evidence existed to support defendant's
convictions on possessory charges relating to handguns, drugs, and
paraphernalia, despite defendant being one of eight persons in the house from
which the drugs and weapons were recovered and despite defendant not having a
possessory interest in the house, as the evidence established that defendant
was in close proximity to the contraband; expert testimony supported a finding
that the individuals in the kitchen wherein defendant was found were engaged in
a large-scale drug operation; defendant's attempt to flee was evidence
sufficient to support a finding of constructive possession of narcotics and
paraphernalia found in various places throughout the premises in question;
police surveillance of the residence showed that defendant was in the home for
about an hour and 15 minutes, not the three or four minutes asserted by
defendant; and, ultimately, it was for the jury to determine the credibility of
defendant's reason for being in the house. Handy v. State,
175
A search warrant issued for the seizure
and search of a briefcase described in the warrant was legal notwithstanding
that the briefcase was in the constructive and not actual possession of
defendant at the time it was seized. Cable v. State, 65
Evidence was sufficient to establish that defendants
exercised joint and constructive possession of controlled substance, despite
the defendants' lack of a possessory or proprietary interest in the house. Cook v. State, 84
Conviction for possession upheld where defendant was in car's
front passenger seat whereas the drugs were found in the left rear door
interior. Colin v. State, 101
DOMINION OR CONTROL
Testimony of police officers as to
defendant's statements of ownership of other items in a car in which cocaine
was found established a direct link between defendant and the contraband and
was sufficient to establish that defendant knew of and possessed the cocaine. Timmons v. State, 114
Evidence that defendant personally signed
for and took delivery of a package containing marijuana and was found standing
above the package with the marijuana exposed nearly thirty minutes after the
delivery was sufficient to support convictions of possession of a controlled
dangerous substance with intent to distribute, and possession of marijuana. McDonald v. State, 347
Without more than the mere existence of two marijuana seeds
located in the front of the car, the police officer lacked probable cause to
arrest defendant, a rear seat passenger, for possession of marijuana. Livingston v. State, 317
EVIDENCE REQUIRED TO PROVE
"POSSESSION." --The evidence must show directly or support a rational
inference that the accused did in fact exercise some dominion or control over
the prohibited drug in the sense contemplated by the statute, i.e., that the
accused exercised some restraining or directing influence over it. State v. Leach, 296
Defendant's possession of drugs with
intent to distribute was adequately proven by evidence that large amounts of
narcotics, packaged for sale, were found in the rental car that he was driving
shortly before his arrest, where he was seen taking possession of the keys
immediately after the rental occurred, and where the car had been subject to
routine cleaning immediately prior to the rental. Stuckey v.
State, 141
Because the facts showed that marijuana in
a bag was found immediately under defendant's car seat, within his arm's reach,
and readily accessible to him but not the other occupants of the vehicle,
sufficient evidence existed to support the inference of defendant's knowledge
of the drug in addition to the mutual use and enjoyment of the contraband was a
permissible and reasonable inference indicating his knowledge. It was also
within the trial judge's discretion to disbelieve an
witness's affidavit that the marijuana belonged to him and that defendant had
no knowledge of it in the vehicle. Larocca v. State, 164
To prove control, the evidence must show
directly or support a rational inference that the accused did in fact exercise
some dominion or control over the prohibited drug in the sense contemplated by
the statute. Knowledge of the presence of an object is normally a prerequisite
to exercising dominion and control. Evidence that contraband was strewn
throughout a stolen vehicle that flipped three times after fleeing from police
was sufficient for a jury to reasonably infer that defendant, who was a
passenger in the vehicle, was aware of the presence of the contraband, knew its
illegal nature, and was, therefore, in possession of the contraband for
conviction purposes. State v. Suddith,
379
CONTROL REQUIRED --Circumstantial evidence presented failed
to establish the requisite knowledge and exercise of dominion or control over
the controlled dangerous substances and paraphernalia defendant was convicted
of possessing where it was impossible to tell if, during the time defendant
traveled into the basement from the first floor of the home prior to exiting
through the basement door, he had, in fact, stood over the drawers in the
counter and had the plain view vantage point urged by the State. Moye v. State,
369
JOINT POSSESSION (“BY
ONE OR MORE PERSONS”)
Defendant's presence in hotel room that
contained marijuana smoke, his joint rather than exclusive possession of the
room, his awareness that marijuana had been smoked, and his mere proximity to
contraband concealed in travel bag of another occupant, were insufficient to
convict him of possession of marijuana.
This Court, in Folk, supra, examined various cases in which
joint possession was found to exist. [***15] In analyzing these
cases, we observed:The common thread running through
all of these cases affirming joint possession is 1) proximity between the
defendant and the contraband, 2) the fact that the contraband was within the
view or otherwise within the knowledge of the defendant, 3) ownership or some
possessory right in the premises or the automobile in which the contraband is
found, or 4) the presence of circumstances from which a reasonable inference
could be drawn that the defendant was participating with others in the mutual
use and enjoyment of the contraband.
Cook v. State, 84
Evidence was sufficient to conclude that
appellant, a juvenile, possessed marijuana under subsection (u) of this section
and § 5-601 of this title when appellant and three others were in a car where
the marijuana was found after a high-speed chase. Marijuana in a crumpled
newspaper was found on the floor directly behind the driver's seat, within
appellant's easy reach; the newspaper was in plain sight; an odor of marijuana
came from the car; and the high-speed chase, the refusal of the driver to stop
once the car was blocked by police, and the refusal of the occupants to roll
down their windows supported the inference that all of the occupants, including
appellant, wanted to escape being pulled over for fear of being caught with marijuana.
In re Ondrel M., 173
Where none of three occupants of a vehicle
admitted ownership of drugs found in a part of the vehicle accessible to all of
the occupants, the arrest of the occupant who subsequently admitted such
ownership was supported by probable cause to believe that such occupant was in
possession of the drugs, either solely or jointly, within the meaning of former
Article 27, § 277(s) (repealed 2002, now subsection (u) of this section); it
was reasonable for the arresting officer to infer a common enterprise among the
three occupants, in view of the likelihood of drug dealing in which an innocent
party was unlikely to be involved.
JOINT POSSESSION. --It is recognized that possession
may be joint; among the factors to be considered in determining whether there
was joint possession are: (1) the proximity between the defendant and the
contraband; (2) the fact that the contraband was within the view or otherwise
within the knowledge of the defendant; (3) ownership or some possessory right
in the premises or the automobile in which the contraband is found; or (4) the
presence of circumstances from which a reasonable inference could be drawn that
the defendant was participating with others in the mutual use and enjoyment of
the contraband. Hall v. State, 119
Sufficient Evidence
Evidence was sufficient to support
defendant's convictions for possession of heroin, cocaine, and marijuana
because (1) a police officer observed people drive into an area, approach a
group of men, exchange money for an object, and leave the area; (2) when police
officers approached the group, the men started running; (3) defendant and
co-defendant ran to an upstairs apartment, and co-defendant dropped a small bag
of suspected heroin; (4) when an officer apprehended defendant in the
apartment, defendant threw a bag containing a large sum of money and a handgun
to the ground; and (4) when a detective apprehended the co-defendant, the
co-defendant threw a bag containing a large amount of drugs packaged for sale.
Thus, the jury (1) could have reasonably concluded that defendant was in close
proximity to the drugs and had knowledge of the presence of the drugs; (2)
could have reasonably inferred that defendant was participating in the sale of
the drugs, and that the gun and money thrown by appellant were instruments
related to the sale of drugs; and (3) could have concluded that defendant was
in possession of the gun that was recovered from the bag that a police officer
saw defendant throw to the ground. Price v. State, 172
KNOWING CHARACTER OF CDS
For an accused to have possession of
controlled substances, the accused must not only know of the presence of the
substance but also of the general character or illicit nature of the substance.
Dawkins v. State, 313
Because the facts showed that marijuana in
a bag was found immediately under defendant's car seat, within his arm's reach,
and readily accessible to him but not the other occupants of the vehicle,
sufficient evidence existed to support the inference of defendant's knowledge
of the drug in addition to the mutual use and enjoyment of the contraband was a
permissible and reasonable inference indicating his knowledge. It was also
within the trial judge's discretion to disbelieve an
witness's affidavit that the marijuana belonged to him and that defendant had
no knowledge of it in the vehicle. Larocca v. State, 164
KNOWLEDGE IS AN ELEMENT OF POSSESSION OFFENSES.
--"Knowledge" is an element of the offenses of possession of a
controlled dangerous substance and possession of controlled paraphernalia. Dawkins v. State, 313
Proof of knowledge for the purpose
of proving possession may be derived from circumstantial evidence and the
inferences drawn from such evidence. Colin v. State, 101
SUFFICIENT EVIDENCE TO SHOW KNOWLEDGE ELEMENT OF POSSESSION
--There was sufficient evidence to support the knowledge element of the crime
of possession of a controlled dangerous substance because a reasonable
fact-finder reasonably could infer that defendant knew the drugs were in the
hatchback area of a car before he was arrested; defendant admitted awareness of
the presence of illegal drugs in the car he was driving but he did not see the
officer recover the marijuana from the rear hatchback area of the car, did not
hear any reference to drugs having been found in the vehicle, and did not learn
through some other post-arrest source that there were drugs in the vehicle. Sellman v.
State, 152
Factors that are to be considered in determining theknowledge" required for possession are: (1)
proximity between the defendant and the contraband; (2) whether the drugs or
contraband were within plain view or otherwise within the knowledge of the
defendant; (3) ownership or some possessory right in the premises; and (4) the
presence of circumstances from which a reasonable inference could be drawn that
the defendant was participating with others in the mutual enjoyment of the
contraband."
Colin v. State, 101
Prescription
§ 5-807. Burden of proof
(a) Burden on claimant. --
(1) The State need not negate an exemption, proviso, or
exception set forth in this title in a:
(i) complaint,
information, indictment, or other pleading; or
(ii) trial, hearing, or other
proceeding under this title.
(2) The burden of proof to establish an exemption,
proviso, or exception is on the person claiming its benefit.
CR § 5-807
Martelly v. State, 230
exceptions in a statute creating an
offense are "to be regarded as matters of defense which the defendant must
prove to withdraw himself from the operation of the statute."
Maki v. State, 239
when the facts are peculiarly
within the knowledge of the defendant, as they were here, the burden is on him
to prove that he comes within one or more of the exceptions.
Spurrier v. State, 229
Since the burden of proving that an accused falls within a statutory
exception is upon the accused, the trial court did not err in refusing to
instruct the jury that no evidence was adduced by the State showing that
appellant was outside the pale of the statutory exception in question.
Mills v. State, 12
Under MD law, “many persons are authorized to possess a drug
for various specified purposes. If the State were required to prove that the
accused was not such an authorized person, it can be seen the burden on the
State would be so great that narcotics laws would be almost unenforceable.
Simultaneously, it is a light burden to require accused to produce evidence
sufficient to raise a reasonable doubt as to whether he was authorized to
possess the narcotic in question.” Agee v. State, 8