Federal and Michigan law prohibit a person from knowingly possessing or distributing a controlled substance. The element of “knowingly” is important because it requires the government to prove that the person knew the substance was what the government was alleging was possessed. For instance, MDMA aka ecstasy is a controlled substance. For a person to unlawfully possess MDMA, they must know it was MDMA and the government must prove it.

Because underground chemists will make drugs that are chemically similar to controlled substances which attempt to have a similar effect upon the user in an effort to evade drug laws, congress and Michigan enacted the Controlled Substance Analogue Enforcement Act of 1986. An analogue is a drug that is substantially similar made for human consumption to mimic a controlled substance. They are also known as “designer drugs”. A good example is Spice. Spice was chemically formulated to look like and have a similar effect on the human body as marijuana. For a while it was sold in parry stores and gas stations until it started causing deaths which prompted a massive law enforcement crackdown and prosecutions under the Analogue Act.

The question becomes, to what extent must someone know that it is unlawful to possess or distribute a newly formed drug? Must the person know its chemical structure? Alternatively, must they only know that the drug attempts to mimic another controlled substance? What if the person did not know if the substance being copied was in fact controlled? These series of questions lead to further legitimate defenses with regard to unknown controlled substances. What if a person possessed a pill that he thought may be controlled but did not know exactly what drug is was? How can someone knowingly be in possession of BZP, for example, when they thought it was MDMA?

These issues were argued yesterday, April 20, 2015 before the United States Supreme Court in the case of United States vs. McFadden. In that case, McFadden was selling a synthetic stimulant commonly known as “bath salts” to a video rental store in Virginia. The drug was capable of producing similar effects s cocaine and methamphetamines when ingested into the body. McFadden attempted to look up the drug to see if it was listed on a schedule to determine if it was lawful. The drug is not scheduled and therefore he thought it was legal. But, it is illegal to possess or distribute a drug that is similar to a scheduled drug if it has similar effects on the human body. McFadden did not know that the bath salts were an analogue under the Act and prohibited from sale.

The government wanted the court to rule that ignorance of the law is not a defense and if McFadden generally knew what he was doing may have been illegal then that is enough to convict him. The justices on the Supreme Court did not seem to identify with the government in that argument.

McFadden, and lower courts believe that e feel that a showing that the defendant knew the substance in question was a controlled substance analogue. That is, the defendant must know that the substance at issue meets the definition of a controlled substance analogue set forth in § 802(32)(A): A defendant must know that the substance at issue has a chemical structure substantially similar to that of a controlled substance, and he or she must either know that it has similar physiological effects or intend or represent that it has such effects.

McFadden acknowledges that forcing the government to prove that a defendant knew that a substance had a similar chemical structure may be difficult. Nevertheless, the law states that the government must prove scienter or knowledge and if they do not, the defendant is not guilty. It is important for defense attorneys to understand this requirement because it can be quite applicable to many drug cases and not only analogies.

SCOTUS is scheduled to decide this case on May 21, 2015.