To convict someone of possession of a controlled substance, the State must prove both that he was in possession of the substance and that he knew or believed he was in possession of it. State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973). See also Wis JI-Criminal 6000. In a published opinion, the court of appeals holds Chentis knew he possessed a trace amount of heroin–undetectable until the State Crime Lab applied a special chemical to paraphernalia–based on fresh track marks on his arm.
During a stop, an officer noticed fresh track marks on Chentis’s arm. A search of his car revealed a baggie containing a white powder, a case of needles, cotton balls, a water solution, a constrictor bag, a crack pipe, and a metal cap or “tin cooker” commonly used to cook controlled substances. The white powder field-tested as oxycodone. Based on that, the State charged Chentis with possession of a narcotic and drug paraphernalia.
A State Crime Lab chemist tested the white powder but found no controlled substance in it. The tin cooker contained no sign of drugs, so the chemist applied a menthol rinse to it and discovered trace quantities of cocaine and heroin.
The State never amended its complaint, which alleged possession based on the white powder. When test results revealed that it was not a controlled substance, trial counsel failed to move for dismissal of the complaint. He also allowed Chentis to plead “no contest” to possession of a trace amount of heroin.
On appeal, Chentis argued that Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38 (1977) would have precluded the State’s charge and his conviction. He requested plea withdrawal and claimed ineffective assistance of trial counsel because his lawyer failed to argue Kabat.
In Kabat, the defendant was convicted for possession of marijuana based on residue in a pipe found at his apartment. A Crime Lab chemist said that it was not possible to detect the presence of marijuana by looking at or smelling the residue. She discovered that it was marijuana by running tests on the pipe. Kabat admitted that he had used marijuana two weeks earlier. But he said that there should not have been any in the pipe that night of his arrest because he had cleaned it.
SCOW reversed Kabat’s conviction because a person’s guilt or innocence of illegal possession should not depend upon the skill of the forensic chemist. The pipe held less than one-half of a gram of ash material. “The amount and form the of the substance found in the pipe [was] not sufficient to impute to Kabat knowledge that the substance contained ingredients of marijuana.” Kabat, 76 Wis. 2d 228-229.
Chentis analogized his case to Kabat. He did not even know that a tin cooker was in his car. The trace amounts of heroin found in it were not detectable without a chemist applying a special rinse first. As for the track marks on his arm, they might indicate past drug use, but how was that different from Kabat where the defendant confessed to using marijuana two weeks earlier?
A lot, said the court of appeals. The track marks indicated recent drug use, not drug use 2 weeks prior. Opinion, ¶13 n.3. Plus the defendant’s knowledge that he possessed a controlled substance may be inferred from circumstantial evidence under State v. Poellinger, 153 Wis. 2d 493, 508, 451 N.W.2d 752 (1990); State v. Trimbell, 64 Wis. 2d 379, 384-85, 219 N.W.2d 369 (1974). It held that “strong circumstantial evidence” showed Chentis’ knowledge that the tin cooker contained trace amounts of heroin: specifically, the track marks, the needles, cotton balls, and a constrictor band. Opinion, ¶13.
There is no mention of whether a blood test showed that Chentis actually used heroin. So this decision suggests that the knowledge of possession of a trace amount of a drug may be inferred from possession of drug paraphernalia, which is a separate crime. After all, won’t the State Crime Lab find trace amounts of drugs on almost every piece of drug paraphernalia that it tests? On this point, the court of appeals decision seems to conflict with Kabat.
Kabat does not suggest that evidence of drug use within the past two weeks would prove knowing possession. The court of appeals seems to be drawing a line between recent and past use. Query just where that line is? What if the marks suggested use several days in the past?