Relinquishing Temporary Custody of Narcotics to Innocent Companion Does Not Constitute the “Sale” of Narcotics

Barrow v. State, Minn.S.Ct., 4/15/2015. 
“C.C.” was driving a car in which Mr. Barrow was a passenger.  The local drug task force was investigating Mr. Barrow’s alleged drug trafficking so they stopped C.C.’s car.  Officers found a bit more than a half gram of crack cocaine in Mr. Barrow’s pocket.  They found 2.1 grams hidden in C.C.’s bra.  C.C. told the cops that she’d hidden the crack there at Mr. Barrow’s request.  In subsequent statements both C.C. and Mr. Barrow said that C.C. had not been involved in the purchase of the cocaine.  C.C. also said that she’d hidden the crack cocaine because she was afraid of Mr. Barrow.

The state charged Mr. Barrow with third degree sale of narcotics and a couple of other drug offenses.  Mr. Barrow eventually agreed to plead guilty to the third degree sale offense.  He admitted during the plea hearing that he’d given the cocaine to C.C. to hide when the police signaled for C.C. to stop the car.  It was the state’s position, which both defense counsel and the court accepted despite some hesitation from the trial court, that this amounted to “giv[ing] away” drugs, which is one of the verbs contained in the statute’s definition of “sale.”  The court accepted the plea and imposed sentence.

After a while, Mr. Barrow filed a post conviction petition to withdraw the plea.  He said that he had not admitted that he had relinquished his possessory interest in the crack cocaine and thus had not sold it to C.C. or to anyone for that matter.  The post conviction court dismissed the petition, saying that the definition of sell only required a physical transfer of the possession of the contraband, essentially dispensing with any requirement of a mental state.  That is, Mr. Barrow “gave away” the cocaine to C.C. to hide when the cops signaled her to stop the car.

Chief Justice Gildea, writing for the entire court, disagrees.  As the court is really, really fond of doing, the Chief hauls out the dictionary to discover that “away” as an adverb means “from one’s possession.”  The phrase “give away” means “to make a present of.”  Mr. Barrow didn’t “give away” his drugs; he had C.C. hide it in her bra in the hopes that the cops wouldn’t find it.  It was more or less a bailment; Mr. Barrow could reclaim his drugs whenever the time was right.  For much the same reasons, Mr. Barrow did not “deliver” – another one of the verbs defining “sell” - the drugs to C.C.  One “delivers” drugs, say, to a mule to carry across the border to be handed off to a street dealer who would be expected (if not required on pain of some dire consequence) to sell the drugs and get the money back to the supplier. 

It’s important that no one second guessed the claim that C.C. was an innocent bystander in all this.  If Mr. Barrow had handed his drugs off to Jabba the Hutt then the court would very likely have concluded that he did either “give away” or deliver his dope.  In that case, the outcome may depend upon the level intent required for conviction of “sale” of narcotics.  Having resolved Mr. Barrow’s case on the basis of statutory definitions the court does not reach that question.