Possession Is Such a Strange Crime

A hypothetical question for my criminal law readers (or anyone else who has ideas): What should I do if I inadvertently come into possession of contraband?

To make it more concrete, suppose I’m walking down the street, minding my own business, when a stranger confronts me, thrusts a duffle bag into my hands, and runs away. When I open a duffle bag, I find a tightly wrapped kilo of cocaine, a pile of child pornography, and a MAC-10 submachinegun. As I look up, I notice several police officers coming down the street, obviously searching for someone or something. They haven’t noticed me yet. What should I do next?

As a good citizen who has come across evidence of a crime, it seems like I should probably turn all of this in to the police. But if I walk up to one of the cops and show him the bag, I’m essentially confessing to possession of the contraband items and proving it with physical evidence. My possession was unintentional, and that might make for a winning defense at trial, but I’m not so sure it would keep me from being arrested. This seems like a risky choice.

If I had a lot of time to decide what to do, I could contact a criminal defense lawyer to help me. I imagine he could probably make a deal where I don’t get arrested for turning over useful evidence of a crime. Or maybe there’s some other solution.

On the other hand, if I didn’t have the time to talk to a lawyer, I think the safest move would be tossing the duffle bag into the nearest dumpster and hoping that nobody saw me with it. That seems like the simplest way to get out of a sticky situation, but is it? Do I have a legal obligation to report the contents of the duffle bag to the police? After all, I saw the other guy possess it, so I’m a witness to a crime, and I’m also in possession of physical evidence. If I throw away the duffle bag, am I concealing a crime?

My reason for asking this is because of a New York Times opinion piece in which Doctor Sandeep Jauhar describes an incident in which he feels he protected doctor-patient confidentiality:

I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.

Professor Steven Lubet from the Pritzker School of Law at Northwestern takes issue:

Hiding evidence of a crime isn’t confidentiality; it’s obstruction of justice. There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.

Jack Marshall also disagrees:

Confidentiality is one thing, assisting in a crime is another. The Hippocratic Oath says “What I may see or hear in the course of treatment, I will keep to myself.” That only means, however, that doctors who learn about criminal activity a patient may be involved in is bound not to report it (lawyers have the same obligation). Jauhar did more than not report criminal activity; he participated in it. He crossed the line by disposing of contraband.

There’s a side issue here, because an unidentified white powder in an envelope doesn’t prove anything. To this day, Dr. Jauhar has no idea what was really in that envelope. And it doesn’t matter that a cop might have arrested the patient upon seeing that powder without any proof that it was an illegal substance. Nor does it matter that a judge might have held him in jail for weeks before getting a lab report identifying the powder as an illicit substance. The epistemological failings of the criminal justice system have little relevance to medical ethics.

The main question here is what should Doctor Jauhar have done? Marshall says he “crossed the line by disposing of contraband” but then doesn’t explain what he would have done if he had been in Jauhar’s place. Lubet also fails to describe what the doctor should have done. He mentions the problem, but he doesn’t seem to recognize it: “There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.” When it is illegal to both possess and cease to possess something, that doesn’t seem like very good lawmaking.

Are Lubet and Marshall saying that if they had been in the doctor’s place that they would have walked over to the nearest cop and said, “I just got this from a patient and I thought you should see it,” and then handed him the envelope full of (probably) cocaine, taking it on faith that he wouldn’t get arrested?

It doesn’t work to say they wouldn’t have taken the envelope in the first place, because how could they know what was in it until they looked inside? And please don’t say that the doctor should have handed the envelope back to the patient once he saw what was in it, no unless you want to explain why giving illegal drugs to a patient is more ethical than discarding them.

You might think it’s crazy to believe the police would arrest a doctor for turning over drugs that he found on a patient, but just because the police might not arrest him for it doesn’t mean it’s not a crime. And if it is a crime, they might arrest him for it. It wouldn’t be the first time police decided to arrest someone now and sort out the details later.

I admit that I haven’t heard of any doctors being charged in situations like this, but it does happen to other people. I have read news reports of security guards at music venues taking illegal drugs off concertgoers and then getting arrested for possessing illegal drugs. So unless there’s an explicit exception in the law for doctors in this situation, it seems to me that Dr. Jauhar was in danger of getting arrested, and disposing of the envelope was the prudent thing to do. (This is not legal advice, but it’s very, very practical advice.)

The basic problem I’m having with this whole scenario is that mere possession of contraband is inherently a victimless crime that harms no one. That’s not just my opinion, it’s physics. Granted, there are some substances which can actively endanger innocent people if not contained properly — radioactive materials, unstable explosives, poisonous gases, biosafety level 4 pathogens — but a big pile of cocaine or child pornography or guns does not hurt innocent people merely by existing. And possessing that pile of contraband doesn’t mean you’re hurting people either.

Further proof that crimes of possession are not based on reality comes from the fact that members of the criminal justice system routinely do the same thing as the people they are arresting and prosecuting. If a cop finds a baggie of cocaine in your pocket, he’ll arrest you for possession and then take the baggie of cocaine. That means he’s now in possession of a controlled substance, and yet somehow that’s not a problem. Depending on the nature of the contraband and the standard practices of each court system, the contraband could also end up in the hands of the prosecutor, the defense lawyer, the judge, and even the jury. And apparently none of those people are committing a crime.

(Actually, that might not be the case. Legislatures are notorious for not including exceptions for law enforcement activities in the criminal statutes, meaning that in some states things like police sting operations, SWAT raids, and even death penalty executions are technically crimes. Another way to put that is that police and prosecutors sometimes break the law in the course of their jobs, but nobody charges them with crimes.)

We criminalize the harmless possession of contraband because it’s a useful proxy for other crimes that are more difficult to police. It’s a lot harder to catch somebody smoking pot in their own home than it is to catch them with pot in their pocket as they walk home. It’s a lot harder to catch an armed robber than it is to catch someone in possession of an illegal gun. It’s a lot harder to catch graffiti artists tagging a building than it is to catch them buying spay paint. All other things being equal, police and prosecutors prefer to go after crimes that are easier to prove.

Unfortunately, we also criminalized possession of various contraband goods out of a desire to “send a message” that some related behavior is bad, or because the people enforcing the laws are confused enough to believe that there really is something harmful about possession of contraband.

And so our criminal justice system keeps doing stupid things like arresting people for child pornography images on computers that they possess on behalf of someone else, or arresting people for “residue,” or intercepting packages of drugs in the mail, delivering them to the recipient on the label, and then arresting that person for possessing the drugs that they just gave him.

Possession is often kind of a stupid crime, stupidly enforced. And don’t get me started on crimes based on constructive possession…

5 Responses to Possession Is Such a Strange Crime

  1. The normal reaction to someone handing you something might be to take it, and if you are running on autopilot you might. But if it is someone you don’t know and you don’t know what they are handing you, the proper response is to not take it. They might insist that you take it, they might threaten to drop it if you don’t. Let them drop it, and stand back. It might be something very unpleasant that you don’t want to get on you. If you take it automatically and realize it might be something you don’t want, drop it.

  2. You varied the question so many times here that I don’t know where to start.

    Much like if you commit a crime, if you innocently come into possession of contraband, which is pretty close to committing a crime, proper legal advice is to shut up.

    I think that short circuits a lot of the scenarios you are drawing.

    As for the bullshit in here about “obstructing justice,” I don’t know who these idiots are, but that’s the stupidest thing I’ve ever heard a lawyer say. SCOTUS just decided the fish case a few months ago, so we should all be up on destruction of evidence law at the federal level. State level is usually not as intense. In either case, your doctor scenario is just silly. He has no reason to believe the guy is being investigated for a crime, he has maybe some reason to be concerned about the envelope. Getting rid of it was his best option. This has nothing, frankly, to do with confidentiality. Confidentiality would not have protected the doctor in the slightest if the cop caught them. That’s a complete misunderstanding of how confidentiality works.

    Now, could he also have said “fuck that!” not taken the envelope and called the cop into the room? Sure. But I tend to think that the consequences of that decision are such that most people would prefer not to do it. You get first to deal with the police, then possibly go to trial and likely get accused of being the true owner of the envelope, you have clients who, like you, don’t understand confidentiality and don’t trust you now, and other people in your own profession wondering about you. Why put up with all of that when you can quietly dispose of it and let the universe decide whether bob the executive is one day going down for his drug habit?

    • Sorry my post was so confusing. Thanks for taking a shot at it anyway. I haven’t seen or heard from you in a long time. Nice to know you’re still around.

      I didn’t mean to imply, nor did anyone else (I think), that confidentiality protected the doctor from the consequences of criminal law. But the doctor’s duty of confidentiality toward the patient does affect his choice. As you point out, the doctor certainly could have gone to the cop, but he can’t tell the cop where the drugs came from without revealing things his patient would rather not be revealed. Thus, to my way of thinking, as long is he doesn’t have a clear legal obligation to take the matter to the police, the duty of confidentiality should prevail, and therefore he did the right thing.

      (Full disclosure: As a libertarian, even if he had a clear legal obligation to take the matter to the police, I think he did the right thing by not doing so.)

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