In 2016, police in Spokane executed a search warrant.  The police were seeking evidence of stolen cars.  They arrested three people.  As they were being booked into the jail, one of the defendants was searched and methamphetamine was found in the pocket of the pants she was wearing.  The defendant asserted that she bought the jeans used, and did not know about the drugs in the pocket.  The case was tried to the court as a bench trial.  The court found the defendant guilty of possession of methamphetamine.

         On appeal, Blake argued that “requiring her to prove unwitting possession to [sic] the charged offense violates due process.” State v. Blake, No. 35601-9-III, slip op. at 1 (Wash. Ct. App. Jan. 22, 2019) http://www.courts.wa.gov/opinions/pdf/356019_unp.pdf. 

         The Court of Appeals rejected this argument and found that possession of a controlled substance is a strict liability crime.  Essentially, if you possess the controlled substance regardless of if you know you possess the drug then you are guilty.  State v. Cleppe. 96 Wn.2d 373, 635 P.2d 435 (1981) 

         The simple possession statute states  “It is unlawful for any person to possess a controlled substance . . . .” RCW 69.50.4013(1). https://app.leg.wa.gov/rcw/default.aspx?cite=69.50.4013. There is no mens rea (mental state) so the State does not have to prove that the defendant knowingly possessed the substance.  

         The Supreme Court explained that the State has legitimate purpose in protecting and preventing harmful behavior, but that the police power is not limitless.  The State’s police power is limited by the due process clause or “by constitutional protection afforded certain personal liberties.” Talley, 122 Wn.2d at 199 (citing Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 435, 511 P.2d 1002 (1973)). 

         The Court found that the rule against criminalizing “essentially innocent” conduct, does not have such exceptions, and it applies with special force to passive conduct—or nonconduct—that is unaccompanied by intent, knowledge, or mens rea. 

         The Court held that the strict liability of RCW 69.50.4013 without a mens rea was unconstitutional.  

         If you have been convicted of a possession charge of illegal narcotics in the State of Washington you should call an attorney.  You can reach our office at ken@blanfordlaw.com or call us at 253-720-9304.