It’s an urban legend that has to have happened in real life more than once: A guy comes home, finds he’s been robbed, and calls the cops.
“What did they get?” the officer asks.
“A kilo of prime coke!” the victim says indignantly. (Or pot, E, meth, or whatever drug is popular when the story is being told.)
Silence for a moment.
“Um… you know what? I don’t think I need to report a robbery after all,” the suddenly nervous drug dealer says.
Now presumably in real life the robber is never arrested, or at least not actively pursued. But suppose this victim was really mad about this and willing to do the time or whatever in order to get into evidence that there actually was a stolen stash of drugs. Also suppose he was able to convince the cops that it was worth their while to catch the thief - I’m sure they have better things to do than protect the property of an admitted criminal.
My question is, IF you could get all the other technical and legal issues out of the way, can someone be arrested, prosecuted, convicted etc. for stealing property that wasn’t legal to own in the first place?
The burglar is not only guilty now of posession with intent, he’s also guilty of breaking and entering.
Then again, the idiot reporting it can also be charged, though I’m not sure how often the conviction will stand. “It was MY kilo of cocaine, I swear! I get it back, right?!?!”
This is of course the main reason why there is so much violence associated with the illicit drug trade. Its not that there is anything inherently violent about it. But since you cannot rely the police to protect your business you have to be able to be more violent than the people who are threatening you.
But back to the OP I’m sure it is still theft even if the item is illegal. Presumably otherwise there would be cases someone could only be charged relatively minor assault charge when actually what they did was a very serious, extremely violent, armed robbery.
The general rule in these cases (subject to the usual caveats about local jurisdictions, etc) is that one cannot plead what is known as a “jus tertii” as a defence in civil or criminal actions. A jus tertii is a claim that a third party had a better right to the property than the person presently complaining. Exactly how that legal conclusion is achieved in any individual jurisdiction may differ, and it is no doubt subject to substantial qualification. But to answer your question in a general way, yes, it is possible to be guilty of stealing from a thief. All you (or the prosecution) have to do is establish that you have a better right to the item than the thief, not that you have a better right than everyone else in the world.
And yes, the problem is usually theoretical - this sort of thing is rarely reported for obvious reasons. But it can arise from time to time. I remember a case where a man was convicted of stealing a church bell which had been taken home by soldiers at the end of WW1 and had (up until its most recent theft by the accused) sat proudly in a local church bell tower. Accused claimed that the church from which he had taken it did not own the bell. Didn’t matter.
First off, a few definitions. Generally speaking, larceny is the crime of taking property that belongs to somebody else, burglary is the crime of entering a house to commit a crime, and robbery is the crime of physically taking something from another person. Depending on the circumstances of the crime, a person can commit all three of these crimes, any one of them by itself, or any combination of them.
As defining by New York Penal Code, larceny is taking something from its owner. The code specifies that the something can be any item having a market value or a cost to be replaced - both of these would apply to a stash of drugs so it would appear that stealing illegal drugs is larceny.
But there is one possible out: the code also defines an “owner” as somebody that has a superior right to possess the item in question. I could see a lawyer arguing that as possession of the drugs was illegal, the original owner had no right to possess them, so his right can’t be superior to that of the thief’s.
I’ll admit I don’t know if this theory has ever been tested in an actual case.
I should have paid a little more attention - I note that your question is specifically about drugs as opposed to stolen property. Again, usual caveats about jurisdictional differences, but theft is historically conceived of as a crime against possession or control or custody- theft is a breach of the King’s peace because it is likely to result in violence etc whether or not the property is itself illegally possessed by the complainant. In my jurisdiction, there is no reason in principle that I can think of why a person can’t be guilty of taking drugs from someone.
Actually, I was originally thinking of asking a follow-up about stolen property. I should have realized it would be the more common legal scenario than drugs.
Really? Merely having the tools only makes you guilty of possessing “burglarious implements”, doesn it? To commit burglary, doesn’t the burglar actually have to succeed in getting inside?
I imagine in this case, the burglar would be charged with stealing as well as possessing the illegal drugs, but one of those might be dropped before going to trial.
Yes, the possession of tools is not specifically burglary. It is a class 5 felony. Entry with intent to do felony is class 4, entry with etc while armed a class 3, while armed at night a class 2, I think.
However, since possession of tools is prima fascia evidence of a felony, once you get in, you are pretty much illegally entered to commit a felony. Since possession of drugs is also a felony, you are already at class 4 Burglary just being inside, with the drugs.
I’m having some trouble finding a case at the moment. I’ve had a couple of lawyers tell me about their genius idea–which was exactly what you are asking about. They’d say, "My guy stole unregistered firearms from a crack house, so I’ve got this great argument . . . " I always try to avoid eye contact at this point. I seem to recall reading cases rejecting the argument.
My understanding is that the argument falls apart. “Illegal to possess” is not the same as “not my property.” And larceny statutes usually talk about taking “property of another” or “personal property in the possession of another.” So if it’s illegal to possess drugs, that doesn’t mean you don’t possess them, or that they are incapable of being property. It means you took some illegal stuff and you’re probably in trouble for possessing it in addition to stealing it.
Take a look at New York’s statute for example. It says,
Article 155 | Larceny | New York State Penal Law | NYS Laws According to your theory, a defendant who steals good from a thief should have a good defense–not only because the victim didn’t own the property, but because ownership is illegal (it’s against the law to possess stolen goods).
The sections I was looking at were 155.05 (Larceny: defined) which says “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” This section seems to clearly state you must take the property from an owner - you could not, for example, be accused of stealing a wild animal because nobody had owned it before you took it.
And the section right above this gives the legal definition of an owner - “When property is taken, obtained or withheld by one person from another person, an “owner” thereof means any person who has a right to possession thereof superior to that of the taker, obtainer or withholder.” And this lead to the argument I made above.
As always, IANAL, and there may be other factors I’ve missed. But the way I read it, possession alone doesn’t create ownership - it requires the “right of possession”.
IANAL, IANAB, IANAJ, IANASOB, but as far as I know, the IRS will try to collect on anything you have or earn. That’s why “illegal” aliens can get a “SSN”–to file for taxes, which the IRS happily takes. And that’s why drug producers are expected to pay for the value of their product–whether they get prosecuted or not.
After all, somebody has to pay for those congressional junkets. And those expensive sunglasses that the Secret Service agents get to wear? Where do you think THAT money comes from?
And all you consider is a burglar with drugs? Hey, this is a new economy.
A couple of anecdotes which may or may not add something to this thread. Theft of Services: go to a house, a female complains that the other residents in the house did not pay her for her services. She is a prostitute, the payment was crack. Did I forget to mention the two guys are her brothers?
Another call go to a house on a 911 call. Caller complains that his brother stole his crack pipe. “Have you thought this one through?”
A prize goes to the first one who correctly guessed that both calls were at the same house. It’s called job security.
Actually the premise that the police are not interested may be false. Heck this is a dream scenario for a cop. Solving this could make a career for an Officer in a small to mid sized town. I was a cop for eight years, but have been out of the business for over twelve years. But “Back in the day”, in Wisconsin, finding the perp would mean Burglary and theft for the offender, and possession for both complainant and offender. Depending on the type/amount of illicit substance involved, possibly possession with intent to deliver. This would be aggressively pursued in the jurisdiction I worked it. As a qualifier, I worked in a reasonably urban area, but definitely not big city. It might be “ho hum yawn” there, but big deal in the burbs. In the rural area I now live in, it would be considered a crime wave. There are now over a dozen stop lights in the county I live in, will the urban sprawl ever stop?
If the property is owned by Abe and previously stolen by Baker, Charlie can still be convicted of the larceny of the property if he takes it from Baker.
There are two theories under which this may be done. The first is discussed above by Noel Prosequi: it’s no defense to claim that no larcent occurred merely because Abe has a better right of possession than Baker did.
More convincingly, perhaps, is this statement: Abe still has possession for the purposes of the larcent statute – not physical, actual possession, but constructive possession.