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01/27/76 PEOPLE v. HARRINGTON

January 27, 1976

PEOPLE
v.
HARRINGTON



Williams, J. (to affirm). Coleman and Lindemer, JJ., concurred with Williams, J. Fitzgerald and Ryan, JJ., took no part in the decision of this case. Kavanagh, C. J. (dissenting). Levin, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Drugs and Narcotics -- Heroin -- Usable Amount Rule.

The "usable amount" and "remnant of a usable amount" tests used in prosecutions for possession of a small residue of heroin are rejected (MCLA 335.153, 335.341).

2. Drugs and Narcotics -- Possession -- Knowledge.

The view in most jurisdictions is that any amount is sufficient to make out the offense of unlawful possession of a narcotic drug, and also that knowledge of the presence of the substance is an essential element of the offense and it is only when these two requirements are present that defendant may be found guilty of possession; this application of the statute effectively carries out the legislative intent to deter narcotics traffic while safeguarding individual rights.

3. Drugs and Narcotics -- Heroin -- Possession -- Sale -- Usable Amount.

The Legislature in its attempt to guard the public health and safety has proscribed the use, possession, and sale of heroin and there is no qualifier that it is possession with intent to use that is forbidden; therefore, it cannot be said that it was the legislative intent to outlaw possession of only a usable amount of narcotics (MCLA 335.153).

4. Drugs and Narcotics -- Possession -- Usable Amount -- Remnant of Usable Amount.

Both the "usable amount" test and the "remnant of a usable amount" test for possession of narcotics are more difficult for courts to administer than the "any amount" test: the "usable amount" test results in a vague or variable standard of amount, and both may require testimony very close to the constitutionally prohibited area of the defendant's status as an addict.

5. Drugs and Narcotics -- Possession -- Heroin.

A defendant found in possession of bottle caps which contained heroin residue apparent to the naked eye was in violation of the statute which makes it a felony if any person not having a license shall possess or have under his or her control any narcotic drug (MCLA 335.153).

6. Drugs and Narcotics -- Quantity -- Possession.

Where there is an amount of narcotic visible to the naked eye, regardless of how much it is, there is a sufficient amount to permit prosecution for unlawful possession of a narcotic (MCLA 335.153).

7. Drugs and Narcotics -- Heroin -- Possession -- Evidence.

There was sufficient evidence to support a finding of fact that heroin belonged to defendant where defendant and another passenger were transported in a patrol car, the police made a practice of examining the patrol car after every use, after removing the rear seat of the patrol car police officers discovered a package containing two metal bottle caps with a thin film of what was later identified as heroin and the evidence was found to the right of where the defendant had been sitting with the other passenger seated on his left.

Dissenting Opinion

Kavanagh, C. J.

8. Drugs and Narcotics -- Heroin -- Quantity -- Usable Amount.

The possession of an amount of heroin insufficient for the use commonly intended will not support a conviction of violation of the statute prohibiting possession of a narcotic drug (MCLA 335.153).

9. Drugs and Narcotics -- Possession -- Remnant -- Usable Amount.

The rule that possession of less than a usable amount of heroin will support a conviction of possession of a narcotic drug if it can reasonably be inferred that the amount possessed was the remnant of a larger, usable amount is not sound, because to concede that the remnant was from a larger, usable amount is not to concede that possession of the remnant is possession of the larger, usable amount (MCLA 335.153).

10. Drugs and Narcotics -- Possession -- Statutes -- Police Power -- Public Health.

The statute prohibiting possession of a narcotic drug without a license is an exercise of the police power in the area of public health and it has legitimacy and effect only insofar as it can be applied to the accomplishment of a proper function in the area of promoting public health (MCLA 335.153).

11. Statutes -- Construction -- Validity -- Constitutional Law.

The Supreme Court is constrained to construe statutes so as to preserve constitutional validity.

12. Drugs and Narcotics -- Possession -- Statutes -- Construction -- Validity.

To proscribe the possession of an amount of heroin insufficient for use can in no way be justified as promoting public health, and if the statute prohibiting the possession of narcotic drugs were to be construed to prohibit possession of less than a usable amount, it would be void (MCLA 335.153).

Dissenting Opinion

Levin, J.

13. Drugs and Narcotics -- Heroin -- Possession -- Statutes.

The purpose of the statute proscribing possession of narcotic drugs is to protect the public from the harm claimed to be caused by the use of drugs; possession of a minuscule amount which cannot be used or distributed for use and which can cause no harm is not within the intendment of the statute and is not a criminal offense.

14. Drugs and Narcotics -- Possession -- Evidence -- Track Marks.

The risk that a defendant will be convicted because the jury believes he is a drug addict outweighs the probative value of track-mark evidence and is far too great to allow introduction of such proofs to show circumstantially that the defendant possessed and used a larger amount of a drug than the residue found in his possession.

The opinion of the court was delivered by: Williams

Robert Harrington and a companion were arrested on a charge of shoplifting and transported to the police station in the rear seat of a police car. On the way police officers observed defendant squirming and fidgeting with his hands behind his back. Later the officers removed the rear seat and two small packages were found. Two metal caps in one of the packages contained a minute residue of heroin. The other package contained several hypodermic needles, a book of matches, part of an eye-dropper and the cotton end of a Q-tip. Defendant was tried in the Jackson Circuit Court, Gordon W. Britten, J., and convicted of unlawful possession of a narcotic drug. The Court of Appeals reversed, adopting the rule that illegal possession is established if it can reasonably be inferred that the amount possessed was the remnant of a larger usable amount. On retrial, Harrington was again convicted. The Court of Appeals, Lesinski, C. J., and J. H. Gillis and O'Hara, JJ., denied application for leave to appeal (Docket No. 17217). Defendant appeals. Held:

1. The "usable amount" and "remnant of a usable amount" tests are rejected.

2. The view in most jurisdictions is that possession of any quantity of proscribed narcotic is sufficient to support conviction, but also that knowledge of the presence of the substance is an essential element of the offense. The quantity need only be enough to permit proper identification of the narcotic. This application of the statute effectively carries out the legislative intent to deter narcotics traffic while safeguarding individual rights.

3. The Legislature in its attempt to guard the public health and safety has proscribed the use, possession and sale of heroin and there is no qualifier that it is possession with intent to use that is forbidden; therefore, it cannot be said that it was the legislative intent to outlaw possession of only a usable amount of narcotics. The "usable amount" rule presents difficulties of administration. It establishes a standard so vague as to be unfair to both the defendant and the state. If taken to mean an amount usable by the defendant, it would require testimony about the defendant's habit, which is close to or within the constitutionally prohibited area regarding ...


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