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"Just Holding it for a Friend" is a Confession, Not a Defense

It's a line right out of an old "ABC After School Special," or from a "very special episode" of an otherwise cheesy sitcom of yore. "But I was just holding it for a friend," mouthed with a certain inflected tone and accompanying body language, expressing both innocence, and the message "I am shocked that you would think that a teenager with a bag of marijuana in his room is probably smoking it." Of course, the "I was just holding it for a friend" line never worked for characters on "Just Say No" era television, yet for some reason, it lives on in the arsenal of readily available retorts for young people found with contraband. policereturningweed.jpg

Not only is the "I was just holding it for a friend" excuse rarely believed, it also is not a defense to possession of drugs or underage possession of alcohol. Illegal drugs cannot be owned by anyone because they are, well, illegal. That is what makes them contraband. You can possess illegal drugs, but you cannot legally own them. That is why law enforcement destroys illegal drugs at the conclusion of a case. On the other hand, a Drug Task Force will sell at auction vehicles confiscated from drug dealers, because a vehicle can be legally owned by someone.

I have had more than a few clients attempt to use the non-existent "I was just holding it for a friend" defense when confronted by the police. The typical scenario is the police respond to a Penn State dorm room for either loud noise or the smell of burnt marijuana. When the police see drug paraphernalia sitting in plain view or find alcohol in the refrigerator, the panicked student proclaims that these items belong to a friend, who is conveniently nowhere to be found. The alcohol in the fridge usually belongs to a 21 year old friend, who has reason to keep a bottle of vodka in the freshman dorms. This variation of the "I was just holding it for a friend" non-defense could potentially expose the "friend" in question to a furnishing alcohol to minors charge, should the police even decide to follow up.

If you are ever confronted by the police, avoid using the "I was just holding it for a friend" excuse when it is transparently not true. Not only is it not a defense, it also amounts to a confession. Holding it for a friend means that by definition, you also possessed the drugs or alcohol in question, thus making you guilty.

Matt McClenahen is a criminal defense attorney in State College, PA, and a Penn State alumnus. http://www.mattmlaw.com/Criminal-Defense-Overview/Drug-Possession.shtml

2 Comments

Doesn't the law also require that the Commonwealth prove not just that you possessed the illegal contraband, but the you possessed it "with the intent to use" it?

No. In some cases, the Commonwealth will actually be trying to prove that the defendant did NOT intent to use the drug. In a possession with intent to deliver case, the Commonwealth will argue that the defendant was going to sell the drugs, rather than use them himself.
It is illegal to grow marijuana even if you simply like the appearance and smell of the plant, but have no intention of smoking or eating it. Even in a misdemeanor, simple possession case, it is not a defense to assert that one was not going to use the drugs. In a drug parpahernalia case, the Commonwealth does have to prove that the defendant intended to use the device in question to introduce an illegal drug into the human body, or to package it, or had used the device in such a manner previously. A virgin bowl in the same pocket as a dime bag would be strong circumstantial evidence. Presence of THC laced resin in a bowl would be conclusive proof.

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