You Don’t Know What You Have Until It’s Seized

“You don’t know what you have until it’s gone” is classic relationship advice. But is “I didn’t know what I had until it was seized” a classic defense to drug charges?

Consider the facts of State v. Hall. An officer stopped the defendant’s car for a traffic violation. The traffic stop led to a search of the car, which led to the discovery of two green pills that the officer suspected contained ecstasy. The SBI determined that they contained both ecstasy and ketamine, and the defendant was charged with, and convicted of, possession of both controlled substances. Apparently, neither the officer nor the prosecutor contended that the defendant knew the pills contained ketamine. As the prosecutor put it, “I believe she knew she had a controlled substance, not the identity of the controlled substance.”

Whether the defendant could be convicted of possessing ketamine without knowing that she possessed ketamine wasn’t the precise issue on appeal in Hall — but could she? As the Hall court noted, to sustain a conviction for possession of a controlled substance, the state must prove that the defendant “knowingly” possessed such a substance. Standing alone, this language at least suggests the viability of an “I didn’t know what I had” defense. But courts in North Carolina and elsewhere have generally required only that the defendant knew that the substance she possessed was controlled, not that she knew the exact nature of the substance. See, e.g., State v. Mendez, 42 N.C. App. 141 (1979) (holding that a defendant “would not be exonerated by virtue of a mistaken belief on his part that he was selling mescaline when, in fact, he was selling another Schedule I controlled substance, [LSD]”); United States v. De La Torre, 599 F.3d 1198 (10th Cir. 2010) (“The statute does not require the Government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance.”).

The bottom line is that if a defendant didn’t know that what she had was a controlled substance at all, she’s not guilty. But if she didn’t know exactly what she had until it was seized, well, that “classic defense” isn’t a defense at all.