State of Arizona v. Kevin Ottar and Ruan Junior Hamilton
302 P.3d 622
Ariz.2013Background
- Undercover detectives controlled a warehouse stocked with bales of marijuana and arranged an undercover sale to defendants Ruan Hamilton and Kevin Ottar.
- At the warehouse the defendants touched, smelled, inspected, separated bales into piles they wanted, and later repackaged selected bundles with an odor-masking product.
- The defendants met officers at a house and paid $180,000 in cash for 375 pounds of marijuana, but were arrested at a hotel before leaving the warehouse with any drugs.
- Defendants were charged with possession of marijuana for sale (A.R.S. § 13-3405(A)(2)); they moved to dismiss under Ariz. R. Crim. P. 16.6(b), arguing possession was impossible in a reverse-sting because police controlled the drugs and would not allow removal.
- The trial court dismissed the possession count (permitting only attempted possession); the court of appeals reversed. The Arizona Supreme Court granted review to resolve whether possession can occur in a reverse-sting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant in a reverse-sting can "possess" drugs for sale when police control the contraband and would not allow removal | State: Yes — defendants exercised physical possession/control by taking custody steps (inspection, segregating, repackaging, paying) | Defendants: No — police control made actual possession impossible; at most attempt | Held: Possession is possible if defendant manifests intent to control or takes custody (facts here suffice to defeat legal impossibility) |
Key Cases Cited
- United States v. Adams, 625 F.3d 371 (7th Cir. 2010) (upheld possession in reverse-sting where defendant paid, accepted keys, and attempted to take custody)
- United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) (reversed possession conviction where defendant merely handled/inspected drugs and showed no assent or control)
- Mejak v. Granville, 212 Ariz. 555 (Ariz. 2006) (explains legal impossibility defense to completed crimes and distinguishes attempt from completed offenses)
- State v. Miramon, 27 Ariz. App. 451 (Ariz. Ct. App. 1976) (insufficient evidence of constructive possession where right to control disposition was not proved)
- State v. McElroy, 128 Ariz. 315 (Ariz. 1981) (possession impossible when the substance possessed was not illegal)