Updated July 1, 2020
Possessing narcotics for personal use is a federal crime. A conviction for “simple possession” carries prison times and hefty fines.
In this article, our Las Vegas criminal defense lawyers discuss the federal crime of “simple possession” of drugs in Nevada. The topics include the definition of simple possession, a comparison of federal and Nevada possession law, common defenses, and possible penalties.
The legal definition of “simple possession” under federal law in Nevada is when someone knowingly or intentionally possesses a controlled substance without a valid prescription. Other expressions for “simple possession” are “straight possession” or “possession for personal use.”
Note that possession does not only refer to when people carry drugs on their person. A person is “in possession” of drugs whenever that person deliberately keeps the drugs in a place where he/she has control over them, like in a home or car. Moapa Valley NV criminal defense attorney Michael Becker illustrates this concept:
Example: Kevin keeps an Ecstasy pill in his back pocket and stores an entire bottle of Ecstasy pills in the garage of his Las Vegas home. Kevin’s wife Jane never buys or uses Ecstasy but knows Kevin has it in the house. If caught, both Kevin and Jane could be booked at the Clark County Detention Center on federal simple possession charges.
Kevin is not only in “actual possession” of Ecstasy by keeping a pill on his person . . . he is also in “constructive possession” of it by keeping it in his home, a place where he exercises control. And Jane is in “joint possession” of Ecstasy by allowing it to be kept in her home, which she also has control over. it is irrelevant that Jane does not use or even approve of the drug.
The key element that underlies every simple possession conviction is that the defendant knowingly possessed the drug. If Jane in the above example honestly had no idea that Kevin stored drugs in the house, then she committed no crime. Mesquite NV criminal defense attorney Neil Shouse expounds on this principle:
Example: Stu in Carson City asks Andy for a ride to the airport. Unbeknownst to Andy, Stu slips a baggie of cocaine underneath the passenger seat. Later Andy is pulled over for a traffic violation and consents to a vehicle search. If the cocaine is found, the U.S. Marshals Service would probably book Andy at the Washoe County Detention Center on federal simple possession charges for constructive possession of the drugs in his car. But if Andy can show that he was unaware the drugs were there, then Andy should be acquitted.
Federal simple possession law also has a provision which outlaws possessing too much of certain legal drugs which could then be used to manufacture illegal drugs. Specifically, it is unlawful for anyone to knowingly purchase at retail during a thirty-day period more than 9 grams of either:
- ephedrine base, or
- pseudoephedrine base, or
- phenylpropanolamine base
Of the 9 grams, not more than 7.5 grams may be imported by means of shipping.
Federal law vs. Nevada law
Federal law and Nevada state law are largely similar regarding simple drug possession. And they both levy similar prison sentences. But unlike federal law, Nevada law has separate penalties for marijuana possession. Learn more in our article on the Nevada crime of possession of drugs.
Note that a person may face charges in both Nevada state and federal court for the same drug possession charge. Whether a person is litigated in one or both courts is decided by the District Attorney and U.S. Attorney’s Office.
Many defenses exist that may be effective in fighting simple possession allegations in Nevada federal court. Below are three typical strategies a defense attorney may utilize during litigation:
- Not enough evidence of drug possession: No one can be found guilty of simple possession unless he/she is proven guilty beyond a reasonable doubt. As long as the defense attorney demonstrates to the court through investigation, direct examination and cross-examination that the state’s evidence is too weak or holey to support a conviction, the defendant should not be held liable.
- No knowledge of drugs: Federal drug law only punishes those who knowingly possess drugs. If the defense attorney can show that the defendant lacked any knowledge of the drugs’ presence, then the charges should be dropped.
- The drugs were found from an illegal search: Occasionally a federal simple possession case can be won on the grounds of police misconduct. If the cops may have conducted an unconstitutional search to find the drugs at issue in the case, the defense attorney would file a Nevada motion to suppress evidence to ask the Nevada Federal Court to disregard any evidence found from the illegal seizure. If the motion is granted by the court, then the prosecution may decide to drop the charges for lack of evidence.
A first-time conviction of violating federal law for simple possession of narcotics carries a sentence of:
- up to one year in Federal Prison, and/or
- a minimum fine of $1,000
Meanwhile second-time conviction of simple drug possession carries a sentence of:
- fifteen days to two years in prison, and
- a minimum fine of $2,500
And the third or successive conviction of simple possession of controlled substances carries a sentence of:
- ninety days to three years in prison, and
- a minimum fine of $5,000
Note that past drug possession convictions in any state court count as “previous convictions” in Nevada federal court. So a defendant with only a first-time conviction of violating federal drug possession law may still be punished as a repeat offender if he/she has past drug possession convictions in a state court.
Also note that defendants who are convicted under 21 U.S.C. § 844 face extra fines to cover reasonable costs of the investigation and prosecution of the case. However, the court may waive all fines if it determines that the defendant has no ability to pay.
Federal law imposes harsh penalties for even a first-time conviction of possessing the drug flunitrazepam. These include:
- up to three years in prison, and/or
- a fine
Nevada state simple possession penalties
Nevada state law mandates different penalties for simple possession under NRS 453.336. See our page on drug possession (NRS 453.336) to learn more.