A. Contraband

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

A. Contraband

Contraband, defined as "[a]gainst law or treaty; prohibited," State v. Butler, 148 S.C. 495, 498, 146 S.E. 418, 419 (1929), is an item the mere possession of which is deemed unlawful. The criminal law is concerned with the possession, sale and other distribution of contraband. As most modern contraband statutes and prosecutions deal with unlawful drugs, this section focuses on that topic.

1. Possession

a. Knowing Possession

The possession of an item considered to be contraband is not strictly an act or a non-act. One could knowingly have a substance in his possession and yet have taken no direct or indirect action to maintain the substance or cause it to come into his possession. The traditional theory of the criminal law that requires an act accompanied by criminal intent would appear to preclude criminal prosecution of such possession. Just such a result was reached in England for a short period on a charge of possession of obscene materials with the intent to sell. It was found that a crime was not charged because no act was alleged; mere intent cannot constitute a crime if unaccompanied by an act. Dugdale v. Regina, I El. & Bl. 435, 118 Eng. Rep. 499 (1853). A charge of procuring material with the intent to sell was appropriate, however, because procuring was an act.

This argument has not been persuasive in this country. Perhaps we simply acknowledge that some act had to precede possession, either obtaining or manufacturing the substance. Proscription of the contraband possession has been upheld as constitutionally valid where the possession was both willing and conscious. Baender v. Barnett, 255 U.S. 224 (1921). Statutes that do not specifically require a "conscious" possession have been upheld where the requirement has been judicially implied. E.g., People v. Gory, 170 P.2d 433 (1946).

South Carolina has always required that there be a knowing possession of contraband or at least possession with culpable ignorance to support criminal liability. In State v. Freeland, 106 S.C. 220, 91 S.E. 3 (1916), the Court held that, although the statute did not require a willful and knowing possession of cocaine, "the statute must be read in the light of the fundamental principle of the common law, which is of general, though, perhaps, not of universal, application, that an evil intent must concur with an act to make it a crime." Freeland, at 223, 91 S.E. at 3. The Court in Freeland went on to hold that the burden was on the defendant to establish that "she was honestly ignorant of the facts, and that her ignorance was not due to her own fault." Id. at 223, 91 S.E. at 4. In essence, the Court held that the accused must prove that the possession was without knowledge, a burden no longer allowed to be imposed upon a criminal defendant. See Chapter I.D.1., Burden of Proof, supra.

Our present statute prohibiting the possession of contraband drugs includes the requirement that such possession be knowing and intentional.

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.

S.C. Code Ann. § 44-53-370(c) (Supp. 2012). "This language evinces a legislative desire to fasten a general, but not a specific, criminal intent as an element of the offense." State v. Attardo, 263 S.C. 546, 549, 211 S.E.2d 868, 869 (1975). In Attardo, the trial court instructed the jury as follows: "normally where a person is in possession of contraband, there is a factual presumption that he knows what it is, and the burden is then on him to prove that he did not have actual knowledge." Id. at 549, 211 S.E.2d at 869. The Court found that this instruction violated the defendant's right to have the State prove all elements of the offense and improperly shifted the burden of proof to the defendant of "an explicit element of the crime." Id. at 551-52, 211 S.E.2d at 871. Accord Mullaney v. Wilbur, 421 U.S. 684 (1975).

What the Court meant in Attardo is not certain, other than a prohibition against shifting the burden of proof of actual knowledge. Clearly the trial court may not charge that the burden of proof as to actual knowledge shifts to the defendant once a prima facie case has been established. The Court did indicate, however, that the defendant might have the burden of overcoming the inferences the State has established. "Even where the State establishes a prima facie case, the burden of proof in a criminal case does not shift but the accused is only required to overcome [the] inference the State has established." Attardo, at 552, 211 S.E.2d at 870 (citations omitted).

It appears that the Court drew a distinction between a shift of the burden of proof and the overcoming of an inference of knowledge that is established prima facie by the evidence of possession. In other words, the jury could infer knowledge from the possession, but the defendant may not be required to disprove such knowledge. The quoted language suggests that the inference must be accepted by the jury if not rebutted by the defendant. Rebuttable presumptions are distinguished from permissive inferences that the jury may accept or reject regardless of whether the defendant presents any evidence in rebuttal. State v. Dewitt, 254 S.C. 527, 176 S.E.2d 143 (1970). To the extent that Dewitt approved the use of such expressions as "rebuttable and reasonable explanation," it was overruled by State v. Cooper, 279 S.C. 301, 306 S.E.2d 598 (1983). Permissive inferences are constitutionally acceptable if they are more likely than not accurate when judged in the context of the facts of a particular case. Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140 (1979). Dictum in Allen suggests that presumptions that the defendant must rebut are to be judged on their face, rather than in the context of the facts of the particular case. They are constitutionally acceptable only if they appear to be accurate by a beyond a reasonable doubt standard. See Chapter I.D.2., Presumptions, supra.

With the continuing development of the law of inferences, the proper charge on this issue is that a defendant's knowledge of the presence and character of contraband may be inferred if the contraband is found to be in the defendant's possession. The jury is free to accept or reject this inference based upon its view of the facts of the case. Cf. State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987). Evidence necessary to establish knowledge of a drug's presence and nature may be shown through the possession of other drugs or paraphernalia used in drug transactions. In State v. Scott, 303 S.C. 360, 400 S.E.2d 784 (Ct. App. 1991), marijuana seeds and plastic bags with the corners cut off found in the defendant's home were properly admitted to establish the defendant's "knowing" possession of cocaine found about his person.

Occasionally a shift in the burden is permissible. Should the defendant claim to fall within an "exception" or "proviso" of the statute, then the burden is upon the defendant to establish that defense. Attardo, at 552, 211 S.E.2d at 871. A common example would be the claim by a defendant that he possessed the drug under a valid medical prescription. The burden would be on the defendant to establish the existence of the prescription. Of course, the jury should be instructed that if there is a reasonable doubt as to whether such a defense has been established by the defendant, then the defendant is entitled to that doubt and should be acquitted. See State v. Brown, 79 S.C. 390, 60 S.E. 945 (1908).

b. Proving Possession

In order to convict for possession of drugs, there need not be a measurable amount of the contraband substance. State v. Robinson, 310 S.C. 535, 426 S.E.2d 317 (1992). So long as the prosecution proves the possession of any amount of a drug, even an amount not capable of measurement, the defendant may be convicted of possession.

In proving that the substance is in fact a controlled substance, the State must establish "a chain of custody as far as practicable." State v. Joseph, 328 S.C. 352, 364, 491 S.E.2d 275, 281 (Ct. App. 1997), cert. granted, July 17, 1998; cert. dismissed, March 17, 1999. The chain must be complete. Failing to call an officer who had the substance in her possession for six months does not establish a proper chain. The officer's move from South Carolina is not a sufficient reason to overcome the defendant's right to cross-examine a person who is "a critical link in the State's chain of custody." Id. at 365, 494 S.E.2d at 281. It is important to note that Joseph objected to the use of the officer's affidavit and established other inconsistencies in the chain of custody. See also State v. Carter, 344 S.C. 419, 544 S.E.2d 835 (2001) (evidence inadmissible where there is a missing link in chain of possession because identity of all handlers "was not established at least as far as practicable.").

The role of confidential informers in the chain was considered by the Court in two cases. First, in State v. Sweet, 374 S.C. 1, 647 S.E.2d 202 (2007), the Court reversed the Court of Appeals over the State's failure to call the informant who had sole custody of the drug prior to turning it over to the officers and who was unobserved during the time of the asserted drug purchase. Sweet was further explained by the Court in the subsequent case of State v. Valentine, 386 S.C. 499, 689 S.E.2d 608 (2010), where the identity of the informant was known to the defense and there was more careful monitoring of the informant's actions. "Where other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling the evidence, our courts have been willing to fill gaps in the chain of custody due to an absent witness." Valentine at 502, 689 S.E.2d. at 609...