I could see them offering to, if they were unable to legally prove possession.
“Can I have that back?”
“Is it yours?”
“Yes, it is.”
“Well, alright here you go!.” pause a beat, “By the way, you are under arrest.”
As others have said, “no,” because the break in the chain of possession would lead to separate instances of possession of the illegal item. Although, I believe it is a good question because similar ones come up in “unit of prosecution” cases all of the time. For example, if I have a joint, take a hit, pass it to you, you take a hit, and pass it back, then theoretically we have committed the following crimes:
Me: Two counts of possession of marijuana, one count of delivery, one count conspiracy to possess marijuana.
You: One count of possession of marijuana, one count of delivery, one count of conspiracy to possess marijuana.
It has at times been argued that we could both be guilty of conspiracy to distribute marijuana, but many states follow what is called Wharton’s Rule whereby you cannot be guilty of conspiring to do something which by definition requires two people to do (e.g. adultery).
If you are in the US and you’ve ever purchased cannabis seeds from Canadian or European merchants, that is exactly what happens if your order is confiscated by customs.
You get paperwork mailed to you that says material mailed to you from ABC Seeds has been confiscated. To claim this material call……
Of course you do not claim the package, and there’s no proof that you ordered it without your admission.
I know this is a tangent but…I once found myself in possession of an illegal substance. It was sperm whale oil I had purchased in the 1960s when we used it as the preferred lubricant for muzzle loading rifles. When I went to sell it on eBay it was promptly removed and eBay sent me an email citing the current regulations.
Not only was it an endangered species violation but it violated the Marine Mammals laws which are much stricter. Under the endangered species act you may sell a currently illegal item (like ivory) if you bought it back when it was legal.
But although I could legally posses the oil I was prohibited from selling, transferring, giving or discarding the substance. There was only one way to to get rid of it. It could be donated to an approved research organization for study.
Regarding the child porn discussion: In many parts of Europe, the age of consent is 16. So a photograph of a naked 17-year-old would be illegal in the U.S., but not necessarily illegal overseas. I am doubtful that U.S. authorities would return such a photograph, but the foreigner’s lawyer might make an attempt.
The age of consent… for what?
In many US states, the age of consent is lower than 18. Most seem to be around 16.
But the age at which they would be allowed to create pornography would still be 18. I doubt that Europe allows porn stars to be under 18.
OTOH, a photograph of a naked 17-year-old is not necessarily illegal. Depending on circumstances, it very well could be considered to be legal art. It’s a fine line that I would not want to try to finesse, but often, so long as the photos are not explicit or erotic, one could get away with it.
If it were determined that the photo was art, and not porn, then authorities would have no case to hold onto it.
No kidding. I have a client in prison for soliciting a 16 year old to send him a naked picture of her. He could have solicited her for sex and it would have been fine. He could have had sex with her and it would have been fine. But he asked for a naked pic? 2 to 10 felony.
I recently flew out of Chicago at O’Hare and saw these “amnesty boxes”. But the ones I saw were not before the TSA security line, but after going through it. And not just past it, but some distance from the security area. It was as if you had brought your legally purchased (in Illinois) marijuana through security and then realized that it was not legal where you were flying to, and needed to dispose of it to avoid getting charged with possession there.
Which leads to another thought: If I purchased marijuana in Illinois would it be legal to take it with me if I was flying to Colorado?
Pretty sure the act of crossing state lines makes it into a federal matter. Either state may have no reason to go after you, but federal authorities certainly could.
Wisconsins laws are just as F’ed up.
The age of consent is 18. So if a 50 year old has sex with a 16 year old they are a felon and sex offender.
But the age for marriage is 16. If the 50 year old marries the 16 year old they can legally have all the sex they want.
Huh?
Either it’s immoral and disgusting to have sex with a 16 year old or it is not immoral and disgusting to have sex with a 16 year old. How does a marriage license change that equation and make an otherwise serious felony ok?
But then if the 50 year old and their 16 year old spouse video taped themselves having (legal) sex, it would still be child pornography.
WTF?
Either lower the age of consent and age to consent to taking erotic images or raise the age of marriage to 18. The law here as it is makes no sense.
My older brother was busted with an ounce of weed. His lawyer got the charges reduced to possession of paraphernalia, the possession charge was dropped due to lack of jurisdiction. A county sheriff performed the arrest on federal land. The pipe in his pocket wasn’t found till he voluntarily gave it up at the sheriff’s office. At his hearing he was fined $175, the judge also ordered the destruction of the weed and paraphernalia.
This is even more fucked up.
FAYETTEVILLE, N.C. – When authorities discovered that a high school couple had sent each other nude selfies, the two 16-year-olds were plunged into a legal morass with the potential to be branded sex offenders for life.
The Fayetteville teens were accused of being both the victims of child pornography and the perpetrators of the crime. And under a quirk in the law, the legal system treated them as adults for purposes of prosecuting them but also considered them minors by deeming their selfies child pornography.
My experience with Europe is certainly out of date. When I was stationed in Germany they absolutely allowed pornstars under 18. Soldiers had to be told to not try to bring back any Tracy Lords material that were legally bought there but now known to be illegal in the states. The economics of the internet age may have changed things but at the time the age was 16 or 17 for pornography there.
Per the standard Fark headline:
“An illegal stash of 50 pounds of marijuana was found by police yesterday. The police hauled the 25 pounds of marijuana away. The ten pounds of marijuana has been checked into a secure evidence facility and the prosecution is expected to present the five pounds of marijuana as evidence against the owners of the property where the stash was found”
I will reiterate what others have said and say that illegal seized contraband gets destroyed regardless of the outcome of the case.
How long it’s held is set by statute depending on what the case disposition is and what the original statute was. That will be different depending on the state.
It’s been said a million times but the person is not getting the illegal material back. With normal evidence, the court can order that the police return the evidence at the end of the trial. It isn’t going to do so with illegal material. If the person did get a court order for the police to return the items, the person could be charged again for possessing it.
I knew of a case like this a long time ago. A guy I was acquainted with owned a lot of guns including AR-15s. Somehow or other, he came to own an unregistered autosear, which is the key part to convert and AR-15 to fully automatic fire and he converted one of his AR-15s to use it. After converting it, he took the autosear and related parts out and stored them separately. In due course, the police came upon and seized the rifle, the autosear, and the related parts. In order to establish that the autosear worked to make the rifle fully automatic, the police installed the autosear and the other components, test fired it, and put the officer who did all this on the stand. The judge, misunderstanding the law, concluded on the basis of the police testimony that the defendant never possessed a fully automatic rifle because it was the police who assembled it. The judge dismissed the case.
In theory, the owner could have moved to get the gun and gun parts returned. That judge, not understanding the law, might even have granted the order. But the defendant never sought the return of the autosear and the police never got to arrest him again for possession and bring the case before a smarter judge.
There is no legal consistency when some one becomes an adult. You can enlist in the military and vote at 18 but you have to be 21 to buy alcohol. And the age of consent varies from 16 to 18 in the US.
Also consider is another scenario that is possible:
A 15 year old has consensual sex with 32 year old and 32 year old is arrested for rape for having sex with minor.
The 15 year old kills someone in cold blood and is arrested for
murder.
In some states a prosecutor can walk into one court room and say the 15 year old is a minor in order to prosecute the 32 year old for statutory rape. And then walk across the hall into another court room and say the same 15 year old is an adult in order to prosecute them for murder.
Inconsistent, yes. But not the same as the difference between a 16 year old being able to have consensual sex just because the have a marriage license. It’s a weird throwback to bygone days.
To play devil’s advocate, don’t you need parental or judicial consent to marry under age 18? If so, then the argument could be made that an adult looked at the particular situation and determined that the minor, in that instance, was mature enough to decide to marry and have sex.
And keep in mind that the law for thousands of years equated the two. There was no legal sex without marriage, and sex within marriage was a fundamental duty of each party (although it was mostly enforced against the woman) with spousal rape not being a crime.
Except that same standard doesn’t apply to non-marital sex. A parent can’t legal allow a 50 year old to have non-marital sex with their 16 year old. There has to be that piece of paper which is what makes the entire thing ridiculous. It smacks of religious overtones and ancient throwbacks.
Either it’s icky for an adult to have sex with a 16 year old or it isn’t. A marriage license shouldn’t change that. It’s a weird law and that’s that!