*1 Harrington HARRINGTON PEOPLE v (Calendar 17). 10, Argued Docket No. 55136. October No. Resub August January mitted 1975 . Decided 1976. companion charge Robert and a were arrested on a shoplifting transported police and to the station in the rear police police way seat of a car. On the officers observed defend- squirming fidgeting ant and with his hands behind his back. pack- Later the officers removed the rear seat and two small ages caps packages were found. Two metal in one of the package contained a minute residue heroin. The other con- needles, hypodermic matches, part tained several a book of eye-dropper Q-tip. an and the cotton end of a Defendant was Court, Britten, J., tried in the Jackson Circuit Gordon W. possession drug. convicted of unlawful of a narcotic The Court Appeals reversed, adopting illegal the rule that reasonably if established it can be inferred that the amount possessed larger was the remnant of a usable amount. On retrial, Harrington again Appeals, was convicted. The Court of Lesinski, J., O’Hara, JJ., C. applica- and J. H. Gillis and denied (Docket 17217). appeal tion for appeals. leave to No. Defendant Held: 1. The "usable amount” and "remnant of a usable amount” rejected. tests are jurisdictions 2. The view in most is that quantity support narcotic is sufficient to convic- tion, knowledge presence but also that of the of the substance is an quantity essential element of only the offense. The need enough permit proper identification of the narcotic. This application effectively of the legislative statute carries out the intent to deter safeguarding narcotics traffic while individual rights. Legislature attempt guard
3. The in its health [11] [10,11,13] [1-9,12-14] What constitutes 16Am Jur the Uniform Narcotic 25AmJur 25AmJur 2d, References for Points in Headnotes Constitutional Law §§ "possession” 2d, 2d,Drugs, Narcotics, Drugs, Narcotics, Drug Act. 91ALR2d810. of a narcotic 144-151,154. and Poisons §§ and Poisons §§ proscribed by 16,17. 21,47 (supp). 2§ of use, possession and sale of heroin safety proscribed the possession with intent to it is use qualifier and there is no therefore, that it be said forbidden; it cannot that is possession of a usable legislative intent to outlaw *2 presents rule difficulties of amount” of narcotics. The "usable vague standard so as to be a It establishes administration. If taken to mean and the state. an unfair to both the defendant defendant, require testimony it would amount usable the habit, to or within is close the which the defendant’s about regarding constitutionally prohibited the defendant’s sta- area by expert is established If the standard tus as an addict. case, leading to an testimony, from case to uneven it variable justice. of administration presents test also usable amount” 4. The "remnant of a into It allows examination of administration. difficulties to show that he used the usable an addict defendant’s status as eyewitness. amount, testimony requires of an or of narcotic visible to the naked 5. is an amount Where there is, eye, regardless it there is a sufficient amount of how much possession permit prosecution of a narcotic to for unlawful possible drug. question it is to sustain a conviction The whether open. visible is left if the amount involved is not finding support a of 6. was sufficient evidence to fact There belonged drug implements the narcotic defendant. that Affirmed. J., Kavanagh, would reverse the defendant’s convic- T. G. C. of a usable amount” test is deficient that
tion. The "remnant possession possession of of the remnant is not the usable possession basically, prohibiting a amount. More the statute of police power in is an exercise of the the area of narcotic proscribe possession To of an amount of health. justified way promot- in no heroin insufficient for use can be ing public proscribe statute health. Were the construed possession amount of heroin than a it of an less usable amount possession of an amount of heroin insuffi- would be void. commonly support convic- cient for the use intended will not a drug. possession of a tion of unlawful Levin, J., grounds Legislature on the did dissented that the proscribe possession of a of a intend mere residue substance which cannot be used or distributed for controlled harm. of use and which can cause no Introduction of evidence on the arm allowed as track marks defendant’s should not be proof that heroin and circumstantial defendant used the part larger once amount in it was the defendant’s
possession, risk because the that a defendant will convicted outweighs proba- jury because an believes he is addict tive of value track-mark evidence. (1971) App 33 Mich NW2d overruled. op the Court Drugs 1. and Narcotics —Heroin—Usable Rule. Amount "usable amount” and "remnant of usable amount” tests prosecutions used in small of residue heroin (MCLA 335.341). 335.153, rejected are Drugs Possession—Knowledge. 2. and Narcotics — jurisdictions The view in most is that amount is sufficient to make drug, out the offense of unlawful of a narcotic presence knowledge and also substance is an essential element the offense when these two requirements present may guilty are that defendant be found possession; application effectively this statute carries legislative out the intent deter narcotics traffic while safe- guarding rights. individual Drugs 3. and Narcotics —Heroin—Possession—Sale—Usable *3 Amount. Legislature attempt guard public
The in its to health and safety use, possession, and sale of heroin and qualifier possession there is it no is with intent use that forbidden; therefore, legisla- is it cannot be said that it was the possession only tive intent to outlaw of a usable amount of 335.153). (MCLA narcotics Drugs 4. and Narcotics —Possession—Usable Amount —Remnant op Usable Amount.
Both the "usable amount” test and the "remnant of a usable possession for amount” test of narcotics are more difficult for “any courts to administer than the amount” test: "usable vague amount” test results in a or variable standard of amount, may require testimony very and both close to the constitutionally prohibited area of the defendant’s as an status addict. Drugs 5. and Narcotics —Possession—Heroin. possession A caps defendant found of bottle which contained apparent eye heroin residue to the naked was in of violation felony any person having the statute which it a makes if not a possess license shall or have under his or her control (MCLA335.153). drug narcotic Drugs Quantity—Possession. 6. and Narcotics — eye, to the visible naked there is an amount Where is, a sufficient amount to regardless there is much it how (MCLA possession of narcotic a permit prosecution for unlawful 335.153) . Drugs 7. and Narcotics —Heroin—Possession—Evidence. finding support a fact that evidence There was sufficient belonged another where defendant to defendant heroin car, police patrol transported made a passenger in a were use, every examining patrol practice after after car police patrol officers discov- removing car of the rear seat caps containing with a thin package metal bottle two ered a heroin and the evidence was film of was later identified what sitting had right defendant been with found to the of where passenger his left. seated on the other
Dissenting
Kavanagh, C. J. Drugs Heroin—Quantity—Usable Amount. 8. and Narcotics — possession of heroin insufficient the use of an amount support commonly a of violation of will not conviction intended (MCLA drug possession prohibiting of a narcotic the statute 335.153). Drugs Amount. 9. and Narcotics —Possession—Remnant—Usable possession than a usable amount of heroin rule that less drug support of a narcotic if will a conviction of reasonably possessed inferred that amount can sound, larger, amount is not because remnant of a usable larger, from amount that the remnant was usable concede possession of the remnant concede 335.153). (MCLA larger, usable Drugs 10. Narcotics —Possession—Statutes—Police Power— Public Health. prohibiting possession of a narcotic without The statute police power of the the area of license is an exercise *4 legitimacy and effect as it can be health and insofar accomplishment proper applied in the area function 335.153). (MCLA public promoting health Construction—Validity—Constitutional 11. Statutes — Law. Supreme Court is constrained construe statutes so as validity. preserve constitutional Opinion op Court Drugs and Narcotics —Possession—Statutes—Construction— 12. Validity. proscribe
To of heroin of an amount insufficient for promoting public way justiffed health, use can in no prohibiting drugs if the statute were prohibit possession to be construed to of less than a usable 335.153). (MCLA amount, it would be void
Dissenting Opinion Levin, J. Drugs 13. and Narcotics —Heroin—Possession—Statutes. purpose proscribing possession of the statute of narcotic drugs protect is to from the harm claimed to be drugs; possession caused the use of 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. Drugs and Narcotics —Possession—Evidence—Track Marks. 14. The risk that a defendant jury will be convicted because the drug outweighs probative believes he is a addict value of great track-mark evidence and is far too to allow introduction proofs of such circumstantially to show the defendant possessed larger and used a amount of a than the residue possession. found in his
Frank J. Kelley, General, Robert A. Der- Attorney engoski, General, Barton, Bruce A. Solicitor Prose- cuting Attorney, Justin, M. James Assistant Prosecuting Attorney, people.
State Appellate Defender Office (by Roger L. Wot- Israel), Stuart M. i/a and for defendant on appeal. (to affirm). Williams, J. Defendant prosecuted for possession of a small heroin, residue of visible to the naked eye, in the form of a hard powdery sub- stance on the interior of a bottle cap. Defendant sought to avoid conviction by asking this Court to con- strue this state’s former statute making it a felony for "any person not having a license possess or [to] have under his control any narcotic drug” require *5 op the Court affirm amount”. We defend- a "usable reject ant’s conviction on these facts "usable Appeals amount” and "remnant usa- the Court ble tests. amount”
I— Facts 21, 1969, Harrington defendant Robert February Cox companion Mary his Jean were arrested in charge shoplifting. Jackson on a Before being searched, in the rear seat of a they placed patrol were trial, car and At brought police to the station. the two arresting they officers testified that had observed Harrington through the rear view mirror and that he fidgeting with his hands behind his back. Both officers nothing saw defendant’s hands. Harring- right Cox, ton was seated on the side of Ms. about eight to ten away inches from her. One officer testi- fied that he did not know whether defendant or Ms. right Cox was or left-handed.
After delivering suspects their two police sta- tion, the officers returned to the car and searched it. seat, After removing the rear they discovered two packages, small consisting one hypodermic several needles, matches, part book of of an eye-dropper and the cotton end of a Q-tip. package second con- tained two metal caps bottle with a thin film of what was later identified as heroin inside.
Although the film was only a residue of the nar- involved, cotic that residue appar- was readily eye. ent to the naked The most direct testimony appli- cable to our police test involved the chemist: you Are able to see present residue at time?
'’Q. * * * residue, yes. "A There is some And, you what do you mean when use the word 'resi- "Q. due’? Opinion op the Court
“A. It is substance, just which powdery a hard is on the cap.” interior of the of the evidence’s relationship location to de-
fendant was officer testifying described as: *6 "A. right It would him, be on or less to the his —more right vehicle, in the center positioned of the where he was in the seat. It right was in of him on back his side.” This, course, removes it from Cox Mary who was on defendant’s left.
The officer who the packages uncovered testified them, that he handled did not consider dusting them for fingerprints, and did not if any know fingerprint processing performed had been on these exhibits. A qualitative, but no quantitative analysis per- formed on the heroin residue.
Defendant was tried by and convicted a jury of un lawful drug.1 a narcotic He appealed, raising only one issue: "Is the of a modi heroin, cum of insufficient in amount to be used for purpose intended, a commonly violation of the statute?” People v Harrington, 33 App 548, 549; Mich 190 343 NW2d In reversing and remanding for trial, a new the Court of Appeals recognized this aas question of impression first in Michigan, rejected the two tests used in this country, adopted a new one. 1 "Any having person possess a license who shall or have un- any der his her guilty or control narcotic shall be deemed aof ** * felony .MCLA335.153;MSA 18.1123. repealed replaced by This has been the Controlled Substances Act 335.341; including 18.1070(41) MCLA provides MSA which in rel- part: evant any person knowingly "It is unlawful for intentionally possess or a from, controlled substance unless pursuant directly the substance was obtained or to, prescription practitioner a valid or order a acting while professional practice, except course his or as otherwise authorized by this act.” 33 396 40 op the Court Michigan authority on not disclosed "Research has drug required quantity of the of the question the to constitute the statute. Cali possession as drug’s for the sufficient to be requires quantity fornia (50 (1966), 504 64 Cal 2d Cal use, Leal People v common rule, a similar 665). adopted Texas Rptr 413 P2d 122). (292 SW2d v State (1956), 377 Tex Crim 163 Greer question on passed that have majority of the states immaterial. State possessed is quantity have held that the (137 465); Schenher v (1965), 643 NW2d 2d 28 Wis v Dodd (90 234); v 2d Mickens State (1956), 573 So App 38 Ala (365 679); People v (1961), Norman P2d 148 237 Colo 188); (182 State v McDonald (1962), NE2d 24 Ill 2d (224 18); People Young (Mo, (1966), A2d Super NJ (1969), AppMd 1968), Haley v State 427 SW2d 424). (253 A2d adopt is free to this Court precedent, local "Without reject Our both. choice minority majority view or or of what the most judgment governed by our should be applicable rule for effi- readily reasonable, practical and encroachment in- undue law enforcement without cient minority that the view judgment is our rights. It dividual enforcement; quantity of nar- law may restrict efficient necessarily is not con- its use sufficient for common cotics *7 hand, the the other ma- possession. On illegal comitant possessed is immaterial is so quantity that the jority view infringement encourage may tend a view that broad rights. individual compromise be- judgment that a reasonable "It is our proposed majority has been minority views tween in the article Law’, 'Drugs Criminal 12 Crim Law and the 1970). Whealy sug- C. (July, Arthur there Quarterly 254 in each case be gests that the facts and circumstances reasonably if it can be inferred determine viewed actually but a rem- of narcotic discovered is quantity larger, If can be usable amount. that inference nant of made, 548, possession App 33 Mich illegal established.” 549-550. trial, applied. this test was subsequent
At the he guilty and was sentenced found defendant jury years prison. to ten three Opinion of the Court was denied Application appeal by delayed 13, granted 1973. We Appeals July Court leave 28,1974.391 769. January
II — The Statutes Relevant 266, 3, 1952 PA charge being was laid under § 18.1123, 335.153; MCLA which reads as MSA follows: * * * "Any person having possess a license who shall any or have under his or her control narcotic shall be guilty felony 335.153; deemed 18.1123. .” MCLA MSA Both the under former statutes which this convic- tion occurred and the new Controlled Substances Act possession include as one of a number of offenses re- Thus, lating to drugs. traffic the former 335.152; statute MCLA 18.1122 MSA made the sale drugs manufacture of such by nonlicensees a fel- 335.153; 18.1123, supra, fn made ony; MCLA MSA 335.154; and MCLA felony; MSA 18.1124 made unlawful use a misdemeanor. specified
None of these statutes must be prohibition involved before the became rele- vant. Act,
Under the Controlled Substances delivery, offenses, and use remain penalties with depending on the type substance involved. MCLA 18.1070(41). 335.341; MSA Under the new statutory scheme, the amount of substance is if relevant it is included in schedule MCLA 335.318; MSA 18.1070(18), for example, heroin, but a schedule substance, 335.314; MCLA 18.1070(14), MSA it and opium other derivatives are "when the ex- salts, istence of these isomers and salts of isomers is *8 possible specific within the chemical designation”. In specifics the absence of such statute, in the former 33 396 42 Court of the with, sale language prohibiting the specific combined "any narcotic of drug”, "any of narcotic is drug”, it difficult to narcotic "any drug” use amount can particular the requirement see how language. This legislative this properly be to added states. most logic by is the taken approach Majority for Possession Test Ill — The is that jurisdictions The view in most is sufficient any proscribed quantity of gravamen is the conviction.2 support Possession Young, State v 427 SW2d charged. the offense 1968). (Mo, 513 language in the is found
Support
approach
this
for
Act, adopted with var
Drugs
of thé Uniform Narcotic
including Michigan,
47
by
modifications
states
ious
2d,
Puerto Rico. Am Jur
Columbia and
District of
Book,
2 of the Act
No. 129. Section
was the
Desk
Doc.
under which defendant was
basis for the statute
Knowledge
possess
part
or intent
charged.3
language
of this statute.4
specific
view,
Therefore,
according to this
necessary,
it is
performed
on the un
qualitative
analysis
whatit
is,
but
in order
determine
known substance
analysis
to determine
quantitative
unnecessary
there is. State
much of the
how
substance
Humphreys,
273, 275
v
406, 410-411;
54 NJ
255 A2d
State,
(1969).
Peachie v
239;
(1953);
203
20
debris about
size
marijuana
found
pockets
dime
in defendants’
was sufficient
Fagin
People,
v
possession,
540,
174 Colo
prove
542;
1216,
(1971),
484 P2d
3 milligrams
1217
as was
scraped
State v
capsules,
from
half
gelatin
three
Young,
1968),
(Mo,
The most against usual criticism directed this test courts applying convicting bemay individu als may possessed who not have known they the sub See, stance they e.g., Peo possessing. were accused of Leal, ple v 504, 509-510; 64 Cal 2d 777, 50 Cal Rptr (1966). 781; 665, 669 413 P2d A closer examination of cases, however, indicates that this is an inaccu rate characterization. It is black letter law that is essential to the de "[i]t guilt
fendant’s
that he
possessed
knew that he
Wharton,
narcotics”. 3
Criminal
Procedure,
Law and
Thus,
p 298.
example,
even while rejecting defend
proposed
test,
ant’s
usable amount
the Court in State
Young,
v
(Mo, 1968),
Therefore, general while the view is that is sufficient to make out the posses- offense of sion, general view is also that knowledge of the presence of the substance is an essential element 33 Court Drugs Un Narcotic Katz, Possession offense. L Statutes, Miami Rev 25 U State and Federal der 810, 821.5 It when (1971); ALR2d an individ present are requirements these two by apply even possession, guilty may ual be found rule. ing majority State, Md in Peachie example,
For intent, and there found 1, 2 (1953), the Court 100 A2d drug. use on the focusing knowledge, by fore *10 had in just the defendant evidence indicated Since narcotic, follows necessarily "it himself awith jected the instrument of and control he had possession that as well as injection, of the the time its contents at drug”. to administer intent and purpose an Court Supreme that of the approach A better 273, (Alas, State, 482 P2d Alaska, in Judd v the facts of a 1971), that "where case explained which drugs, it is unnec- illegal knowing possession show long so found as a quantity be essary that usable permit is found to of the quantity sufficient identification”. proper to find that has been approach
The most direct
is used:
microscopic
analysis
or chemical
substance,
presence of the
but to
"not to determine the
long
qualitatively the substance seized
identify it. So
narcotic],
pre
any other
the statute does
marijuana [or
possessed.
amount which must be
any minimum
scribe
And
specify
cannot
asked to
it
that this Court
be
follows
to in
quantity of a contraband substance is sufficient
what
sanctions,
long
presence
so
as the
sub
voke criminal
v Humphreys, 54 NJ
readily determined.” State
stance is
(1969).
406;
While because, "A more test this rejected Court which sin to addicts and favorable interpretation liberal reasonably cannot in dealing narcotics illegally those 643, 651; Dodd, 2d 137 v 28 Wis State given”, be (1965), present does serious rule NW2d according criteria, to our difficulties. When viewed to administer than difficult this rule would more be majority view. has this standard indi adopted No has court which It is an be. amount amount would cated what a usable of narcotic ad practices "under the known usable Moreno, 116, 120; 374 v 92 Ariz P2d dicts”. State is useless con (1962), quantity Thomas, v sale, App 246 Cal 2d or sumption (1966). Therefore, 409, 414 111; Cal while Rptr microscopic or quan is not a minute it is clear it is, a which so what it standard tity, just it is unclear defendant and state vague as to be unfair to both for its responsible which is administration. to exact specify
Courts have been unable Legislature has not prohibited amount where For us invent the forbidden amount done so. legislative impermissi- silence would light of this be legislation. Legislature judicial Where ble so, sections the Controlled Substances done Act, legislatively-des- other than these for us select equally impermissible. ignated benchmarks would be an applied If the test were to refer to require for defendant’s use would testi- appropriate habit, bringing defendant’s us close involving mony constitutionally prohibited if area not within addict. Robinson an regarding defendant’s status as California, 660; 82 S Ct 8 L Ed US 2d *12 Opinion of the Court expert so that applied testimony
If the test were standard, the at trial would establish the admissible to courtroom could well from courtroom result differ the kind of expert create uneven expert, to we must avoid. justice administration obviously stop to legislative hor- policy which has led to the un- rendous traffic in narcotics people, and the many fortunate addiction of so unfor- Thus, Legislature human life. tunate waste of health and attempt guard safety its use, illegal and sale legislative qualifier no it substance. There is to use that is forbidden. possession with intent There- fore, legislative we intent say cannot to out- amount of law a usable narcotics. reject For these reasons we must defendant’s re- quest apply usable test narcotics convictions.
V— The of a Usable Remnant Amount Test The Court Appeals presented its new standard determining possession attempt as an to facilitate efficient law enforcement without undue encroach- rights. ment individual While its "remnant of a larger, approach usable amount” may have seemed as a matter of theory, problems attractive of ad- ministration manifested defendant’s trial indi- goal quite cate that this was not achieved. undeniably This test allows examination into the addict, status as an defendant’s an area forbidden California, 660; Robinson v US 8 L S Ct Ed 2d 758 trial, Harrington’s
At prosecution at- first apply the test tempted by asking the from expert Michigan Department Health Crime Detection Division: *13 Opinion the Court of or as to whether not "Q. conclusion you a form [C]an larger was a of what remnant is the you a
what call residue caps? quantity in these actually I know is what in testify to merely "A. I as can in I can’t been there may have cap.
that As far as what say.” Therefore, it. not do testimony did
Obviously, that jury could have the only upon which the evidence of pa in the the found back the substance found that quantity was the larger a car the of trol residue officer, over defend admitted police testimony "tracks” had seen fresh that he objection,8 ant’s defendant’s left arm. to be con- tortuously were
Even if such evidence was not an addict that defendant showing strued as heroin, prej- it merely extremely had is still but used Further, needle tracks show udicial. such heroin or another sub- possibly injected he or she had do time. not show that They stance at some recent particularsubstance at issue. defendant used the the way proving of substance was possible Another by testimony a a remnant of usable would questioning, explaining: permitted this line of The court agree the with Mr. Biewend that under the decision "The Court:! will appeal Harrington’s prior Appeals of in Mr. of trial Court here, rendered show, People setting in- must and the Court must forth that that of narcotics is found must be shown it was struct part the residue might quantity, then or not the Defendant have of useable whether past jury in a circumstance for the used it whether or not there was useable giving becomes consider quantity. Appeals in Court Harrington respect in to Mr. here in one the sense that is taken cause, prior away why there are under laws it was it would the other far, go presented into matter of tracks under the facts thus not but here decision, Appeals under the Court of is a circumstance to be by Jury, as to whether or not there indications that considered are user, go would to whether or there Defendant was a which not was a usa- prior picking up quantity, in the arrest oFtEe ble paraphernalia So, Appeals deci- for use in narcotics. under that Court of go testimony into what or not the Court would allow sion —whether tracks, Harring- were indication recent use of narcotics Mr. there ton.” Court eyewitness.
of an difficulty The obvious obtaining why such reason testimony is but another adminis- tration this difficult. approach is so
VI — Conclusion In in possession this case defendant was found caps apparent bottle with heroin residue to the naked eye. We hold that such is in violation of 335.153; MCLA MSA 18.1123 which makes it a felony * * * if "[a]ny person having a license shall pos- sess or have under his or her control any narcotic *14 drug”.
This is not the kind of case where scrapings are
taken from the
pocket,
inside of a coat
or a plastic box
dresser,
aon
Pippin,
Where there anis amount of narcotic visible to the eye, regardless naked is, of how much it there is a suf- ficient amount to permit prosecution. We open leave question of whether possible to sustain a con- viction if the amount involved is not visible.
As for argument defendant’s was established, we find that there was sufficient evi- dence to support a finding of fact that the narcotic drug and implement belonged to defendant. po- The lice made a practice of examining patrol their car af- Therefore, ter every use. goods must have been left one of the two by passengers, Harrington or Ms. Cox. The evidence was found to defendant’s right. Ms. Cox was seated on his left.
The conviction is affirmed. Kavanagh, by Dissenting Opinion C. J. JJ., with Wil- Lindemer, concurred and Coleman liams, J.
Fitzgerald JJ., part no the deci- Ryan, took and of this case. sion (dissenting). question pre- The
Kavanagh, J.C. possession of an is whether by appeal sented this use commonly heroin amount of insufficient for violation of conviction support a intended will 335.153; MSA 18.1123. MCLA not. We hold it will a companion were arrested on
The and a defendant transported police charge of and shoplifting police way car. On the in the rear seat of station in the rear view mir- defendant police officer observed hands with his behind his squirming fidgeting ror rear seat and the officer removed the two back. Later caps Two metal in one of packages were found. small minute residue heroin. packages contained a de- package paraphernalia The other contained kit”. a "heroin scribed by convicted of un jury
Defendant was tried and Ap drug. of a narcotic Court of lawful the conviction and ordered a retrial. 1 peals reversed again convicted that convic defendant Appeals. Court of tion was affirmed *15 opinion reversing In its defendant’s first conviction split out there Appeals pointed the Court of that is a this Texas authority question. of California and quantity drug’s the be sufficient for require that the Leal, People v 504; 2d 413 See 64 Cal common use. State, and Greer 665; (1966), v Rptr 777 P2d 50 Cal 377; 292 122 A of majority 163 Tex Crim SW2d hold that if the possessed the other states substance (1971), Harrington, App People den v 190 NW2d lv (1971).—Reporter. Mich 775 Kavanagh, Opinion by Dissenting C. J. support any quantity be identified will convic- can tion. minority view
Acknowledging may the im- that enforcement, pede majority efficient law view infringement rights, of individual may encourage compromise Appeals adopted Court of as a the rule suggested C. by Whealy Arthur of Ontario Bar in in 12 Drugs his article Criminal Law Crim Law 1970). Quarterly 254 He (July reported some Ca- nadian courts if the facts and have held circum- of particular support stances case will a reasona- larger, ble inference that it remnant usable amount, possession so as to is established warrant a conviction. persuaded
We are not by reasoning. Even concede that is from remnant a usable is not to that possession concede of a remnant possession of the usable amount. Possession of the hide is not of the horse. apart logical
But from deficiency in such a any rule we cannot accept it for a more basic reason. police
This statute is an power exercise in the area It health. has legitimacy and effect applied insofar as can be accomplishment a proper function in the area promoting public health. proscribe
To the possession of an amount of heroin insufficient for use can no be way justified pro- moting public health.
We are constrained construe statutes as to so preserve this constitutional validity. If we were to adopt the view that possession her- amount of oin than less a usable amount this we statute would duty bound to hold the statute void.
Accordingly we hold proof of less *16 Mich 33 Levin, by Dissenting Opinion J. as here will not sup- than a usable amount of heroin port defendant’s conviction. light
In this issue we disposition of our do not urged appeal. reach the other matters The and defendant is set aside dis- conviction charged.
Levin, join unable to (dissenting). J. I am disposition Court’s of this case. agree
I with the Chief Justice that the Legislature did not intend to of a proscribe mere resi- due of a controlled substance. is to purpose protect of the statute
from the harm claimed to be caused the use of drugs. Possession of a minuscule amount which can- not be used or for use and distributed which can cause no harm is not within intendment of the statute and is not a criminal offense. people sought establish of a
larger amount of heroin circumstantially with evi- dence of track marks to show that the defendant used prosecutor the heroin. The conceded that without people such evidence the could not prove that remnant part larger amount or larger that a amount was ever in Harrington’s possession.
I also find
myself
agreement with Justice Wil
regarding
dangers
liams
suggestive
evidence
a defendant’s status as an addict. See Robinson v Cali
fornia,
660;
370 US
82 S Ct
* (2d McMcCormick, ed), 185, pp Evidence § 438-439.