Could a burglar be arrested for stealing drugs?

[guizot]

@Bricker

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.

So what’s you’re saying, Bricker, is that possession really is nine-tenths of the law"?

What I want to know is what that other one-tenth consists of. Everyone has told me I should have gone to law school (it sounded kind of dull and over-priced to me), but I can’t see what this one-tenth would be in concrete terms.

[guizot]

@Bricker

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.

So what’s you’re saying, Bricker, is that possession really is nine-tenths of the law"?

What I want to know is what that other one-tenth consists of. Everyone has told me I should have gone to law school (it sounded kind of dull and over-priced to me), but I can’t see what this one-tenth would be in concrete terms. At least not at this present moment when a bunch of guys are trying to ride their skateboards on the retaining wall of the “garden” next to my office. Why the hell do they want to do that, anyway?

[Gfactor]

Finally made it to the law library.

I found two ALR annotations that discuss cases like these;

Stolen Money or Property as Subject of Larceny or Robbery, 89 A.L.R. 1435 (1963):

It appears to be well settled that one who steals money or property which, itself, had been stolen by another may be prosecuted therefor notwithstanding the illegality of the possession of his victim. This principle has been followed in a number of cases wherein it was held or recognized that stolen money or property may be a proper subject of larceny or a crime involving larceny such as robbery or forgery

Gambling or lottery paraphernalia as subject of larceny, burglary, or robbery, 51 A.L.R.2d 1396 (1957):

gambling paraphernalia may be the subject of larceny, burglary, or robbery is applied even where it is provided by statute that a person shall have no property right in such articles.

Apparently the law is less clear in cases where one loses money in an illegal gambling transaction and then forcibly takes it back;

Although there is authority to the contrary, generally a charge of robbery or larceny has failed where one who had lost money at gambling compelled by force or threats the return of his gambling losses only. The latter decisions have been based either on the theory that the retaking of gambling losses, under a bona fide claim of right, does not constitute robbery or larceny because there is no felonious intent, or on the theory that title to the money won at gambling does not pass to the winner, and, therefore, the loser is merely an owner retaking his own specific property. At least one court has relied on an additional ground, the unclean hands doctrine, to justify an acquittal; although this doctrine has also been applied to justify a conviction. However, if the loser compels the surrender of more than the amount which he lost, the courts have held that he is ordinarily guilty of robbery.

See,* Retaking of money lost at gambling as robbery or larceny*, 77 A.L.R.3d 1363 (1977)

[Gfactor]

@Gfactor

Apparently the law is less clear in cases where one loses money in an illegal gambling transaction and then forcibly takes it back;

Of course, the use of force part subjects the defendant to criminal liability for assault-type crimes. OTOH, if the defendant took his money back without force (for example,when the other guy passes out drunk after celebrating his winnings) according to the ALR, there’d be no liability for retrieving the losses.

[frogger_the_green]

So can the dumb complainant telling the cops so and so stole his kilo get in legal trouble related to possesing the drugs if they don’t catch the thief, find the stuff, and get some evidence (in addition to his admission) that he actually had it in the first place?

I know the law would investigate and keep an eye on you, but assuming you have nothing else for the law to find is there really any legal harm in reporting that one batch of drugs stolen if it’s not found and connected to you?

[mazinger_z]

@frogger the green

So can the dumb complainant telling the cops so and so stole his kilo get in legal trouble related to possesing the drugs if they don’t catch the thief, find the stuff, and get some evidence (in addition to his admission) that he actually had it in the first place?

I know the law would investigate and keep an eye on you, but assuming you have nothing else for the law to find is there really any legal harm in reporting that one batch of drugs stolen if it’s not found and connected to you?

Ok, what evidence would one have to prove that someone had previously owned illegal drugs? Pictures, videotape, perhaps? Assuming that such evidence is actually admissible, how will anyone attest, even if not willingly, that it is in fact illegal drugs that are missing?

[Gfactor]

@mazinger_z

Ok, what evidence would one have to prove that someone had previously owned illegal drugs? Pictures, videotape, perhaps? Assuming that such evidence is actually admissible, how will anyone attest, even if not willingly, that it is in fact illegal drugs that are missing?

Sir, in order to investigate, we’ll need you to sign this [del]confess[/del] statement describing the stolen cocaine.

What if, in addition to the signed statement that drugs were stolen, the cops search and find one or more of the following:

1. a roach;
2. drug paraphernalia;
3. drug residue;
4. coke vials;
5. drugs in the defendants hair or urine;

*Cf., *

Two residents of the Town and Country Motel were charged with felony possession of a controlled substance after one of them called the Saratoga County Sheriff’s Office on Friday morning to report that three men had assaulted him and stolen drugs from him and his roommate.

It’s not clear from the article whether the arrest was based on the report alone or evidence from a subsequent search. And charged isn’t the same as convicted.

[mazinger_z]

@Gfactor

Sir, in order to investigate, we’ll need you to sign this [del]confess[/del] statement describing the stolen cocaine.

What if, in addition to the signed statement that drugs were stolen, the cops search and find one or more of the following:

This would be an interesting case! I’m willing to sell out my client (I never really did criminal defense anyway), and stipulate to all in your list as true. Without actual possession, all you know is that I used. Goodie for you. I’ll plead nolo contendere to simple possession and pay the fine if you would please expunge my client’s record. My client, obviously not the sharpest spoon in the drawer, has no idea what a gram is relative to a kilo anyway.

[Gfactor]

What we are talking about here is the *corpus delicti * rule, or more accurately, the *Opper * rule. See generally, Moran, In Defense of the Corpus Delicti Rule 64 Ohio St. L.J. 817 (2003): http://moritzlaw.osu.edu/lawjournal/issues/volume64/number3/moran.pdf

For fun, see:

http://caselaw.findlaw.com/data2/circs/5th/0420177p.pdf (confession sufficient evidence where corroborated by extrinsic evidence of some elements of the crime).

But see, http://laws.lp.findlaw.com/getcase/2nd/case/981492&exact=1 (uncorroborated confession not sufficient to prove drug possesion without grounds for strong inference of reliability).

http://www.cofad1.state.az.us/opinionfiles/cr/cr010280.pdf

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=0031124cr0

mazinger_z, I agree the case is weak, and probably unsustainable in many jurisdictions. I’ll take your nolo plea, but I suspect the penalty will vary among jurisdictions. NORML - Working to Reform Marijuana Laws Since 1970