Ghost Dope Laws: A Complex and Contentious Legal Issue

Defining Ghost Dope

The term "ghost dope" refers to a legal concept in the criminal law in the United States that is involved in drug-related prosecutions under both state laws and the Controlled Substances Act (CSA), which is a federal statute. When a defendant is charged with possession with intent to distribute, in most situations, the government must prove beyond a reasonable doubt that the defendant was in actual or constructive possession of the identified amount of drugs or controlled substances. A recent decision by the U.S. Court of Appeals for the Fourth Circuit, United States v. Ward, 2023 U.S. App. LEXIS 14129, considered many issues, including use of evidence of what is commonly called "ghost dope."
Ghost dope is identified as some non-object evidence of alleged drug dealing. Ghost dope is knitting yarn resting on the scales or other area in a house used to weigh and bag up drugs and controlled substances. Several cases where alleged drug dealing has been occurring indicate that what investigators presumed to be drug smugglers were weighing a small amount of illegal drugs which would not be noticed, on a set of scales that were bagging up other much larger amounts of contraband material. This supported the presumption that the subjects of the criminal prosecution had been dealing drugs, even though the weight of the contraband material was dwarfed by subsequent evidence not recovered by investigators when the crime scene was initially secured. The ghost dope amounts to shading the truth about how much illegal drugs were present at the time of and shortly before the apprehension. Evidence of what is called ghost dope, may be extremely prejudicial , without properly authenticated proof of how much contraband material was exactly weighed and handled on the scales.
Ghost dope is associated with evidentiary theories of lawful possession with intent to distribute only when the total weight of drugs possessed by the accused exceeds the weight of the ghost dope. The implication is that the amount of the drugs not subject to individual measurement or weighing are part of the total aggregate amount properly supported by the presumption of guilt. This may not be the correct application of the science of weight and measurement of contraband material. Ghost dope needs to be carefully considered in assigned probative value by the courts.
Ward involved audio and video recordings made as part of a drug trafficking investigation. These were obtained by law enforcement agents with court orders. The Fourth Circuit held that the trial court committed error in not excluding evidence of ghost dope, and evidence of a police drug-detecting dog sniff was inadmissible as well. A typical violation occurs when the trial court admits the illegal material like a dog sniff, police arrest a defendant and then seizes all items within his possession, under the seizure statute. The trial court excludes the improperly secured items and evidence obtained from the search incident to arrest, both of which are termed "fruit of the poisonous tree." The evidence of ghost dope is very prejudicial and troublesome to the defendant who contends the amount of contraband material was very small.
Ghost dope cases are factually individuals and house to house, and case-by-case situations. The degree to which the evidence is used should be a jury question. Ghost dope evidence is an important consideration when defending drug cases.

The Jurisprudence of Ghost Dope

In both federal and state legal systems, ghost dope is usually included in the same general federal statutes that address controlled substances. For example, Title 21, Chapter 13, Subchapter I, Section 841 of the U.S. Code outlines 18 U.S.C. § 841 – "Prohibited Acts A", which primarily addresses the aspects of manufacturing, distributing, dispensing, and possessing controlled substances. In a section of the Code technically referred to as "(a)(1)", there is a subsection that states "it shall be unlawful for any person knowingly or intentionally…to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense, a controlled substance." By its very presence in a section where possession is plainly discussed, 21 U.S.C. § 841 includes ghost dope instances where any person or persons are found with possession of a substance intended for manufacturing.
The Code is broken down significantly further, giving further insight into the handling of ghost dope with respect to a variety of circumstances. The second portion of the Codelisted above, "(a)(2)", incorporates ghost dope found in a federal conspiracy to manufacture section. This section states that any person who "knowingly or intentionally conspires to manufacture, distribute, or dispense a controlled substance" is prohibited by law. This section, too, is a "knowing" or "intention" possession law under the federal jurisdiction. In addition, a subsection to the Code provides more ways that a person can be found guilty of violating this specific Code.
Section (b) of the 21 U.S. Code listed above, however, does not simply apply to producers and manufacturers. It allows any, and all, people that have any control over a substance meant to be manufactured to be considered for prosecution.
Throughout other parts of the Code, a number of sentences explicitly mention "ghost dope" within the context of a drug-related crime. The context of each mention primarily appears near the beginning of the Code, related to possession and intent to distribute, while the more nuanced parts about conspiracy and other avenues do not specifically mention the term, and therefore do not apply in this context.
There are a multitude of federal acts that all similarly address ghost dope. Certain acts focus on the convictions and standards of federal cases, whereas others have an aim at restricting the handling and distribution of certain drugs even as far as its transport from one point to another, such as the "International Cultivation of Illicit Cannabis Plant" President’s Directive of 1991. This directive, Section VIII, Article 21 addresses ghost dope in the context of cannabis, generally regarding the hashish form of cannabis. The section expands the definition of the plant to broadly include any portions of marijuana found which are intended for illicit purposes, such as trafficking from one point to another jurisdiction.
At the state level, ghost dope is again largely addressed in the same sections as federal regulations, such as the Maryland Code § 5-601. This particular subsection, "Manufacture, Distribution, Dispensing, and Possession with Intent to Distribute a Controlled Dangerous Substance," covers the broad strokes of the law in the case of ghost dope. Section "(b)" is when the conversation about "ghost dope" becomes more nuanced. This paragraph outlines what a "manufacture" classification means, and delves into the specific manner in which the crime of being in possession of ghost dope is legislated. The ghost dope component is relatively vague, but since it is referenced in the context of a criminal law that is otherwise quite clear-cut, it is without question that ghost dope accounts for a reasonably significant proportion of plant material not intended for its normal use, at least in the state of Maryland.
The Maryland law, like many others in the country, specifically names the portion of the plant to which the law applies. In the case of Maryland, it makes mention of "seeds", "roots", "stems", and "leaves", among others, all of which are named as items subject to the "ghost dope" circumstance.

Ghost Dope: The Debate

The controversial nature of ghost dope laws cannot be overstated.  Legal experts, defense attorneys, and civil rights advocates alike have railed against the laws on the basis of their sheer unfairness. For instance, one judge found California drug laws requiring suspensions to undocumented immigrants even in cases where a conviction may not lead to deportation unconstitutional. And several federal courts have ruled collectively that ghost dope laws set sentences "far in excess" of what Congress intended. The issue, as the Los Angeles Times explains, is that ghost dope laws treat drug offenders who grew marijuana the same way as mobsters, racketeers, and terrorists. They mean that you can face the same maximum sentence as a cartel kingpin if you’re a person who grows marijuana in your garage. Because ghost dope laws can add years of prison time to a sentence, they are masters at bringing enhancement of mandatory minimums into sentencing.

Implications for the Accused

The impact of ghost dope laws on defendants is significant and difficult. The concept of proving or disproving an accusation that a person is guilty of possessing cocaine or heroin is much more complex than it seems at first glance. Imagine the scenario of having a small pouch in your pocket that has some amount of white powder in it. The police officer finds your pouch, has it forensically analyzed, and it is found to be cocaine. Case closed. Right? Not necessarily.
Suppose the pouch is not yours, rather you just picked it up off the ground at the bar a few minutes before the police stopped you for an open container. Also suppose that when you picked it up, the pouch was in plain view and you had no reason to believe it contained anything illegal. When it was found on you, it was in your pocket. Is this still cocaine? Or suppose that you were the owner of the pouch, but when you were opening it to inspect, something about your own identity or a subsequent event made it unconvincing that you had not possessed the cocaine, such as a tear in the pouch from which cocaine spilled out onto the floor of a club.
Or suppose the cocaine had actually been hit with talcum powder so that it would appear to be a high-grade form of the illegal substance, sold for a premium. You remember the dealer telling you that a crime lab would conclude it was cocaine, whether or not it really was because it looked like it and smelled like it.
These are examples of situations that will lead to a real legal challenge that can cause trouble for a defendant accused of illegal narcotics possession in spite of his or her actual innocence. Even a small pouch of spice or synthetic marijuana could lead to a similar question. The question also exists in the state courts for other drug-related activities, whether the nature of the drug goes beyond possession itself. There are similar questions in the federal courts, where the law prohibits intent to distribute in Federal Controlled Substance lists.
The consequences of conviction for drug possession charges in Louisianna are substantial. If your case is simple or straightforward enough to be eligible for drug court , that is one path for rehabilitation that may forego conviction if you successfully complete the program. However, medical costs vary in the program, as do the costs of a private practitioner for probation and drug court. If neither of those options is available (such as after plea negotiations or trial), even a first offense possession charge could lead to a year-long prison sentence and the lifelong stigma of a felony conviction.
A conviction can ruin your career, so you ideally need highly skilled representation for either plea or trial. Expert analysis of forensics is needed to show, for example, that the cocaine had been adulterated to look like pure cocaine. There may be ways to show that, for instance, in some cases the pouch itself may have left traces of the drug, though the pouch is not evidence of actual possession. Such defense is likely to require expert witnesses to testify to what the forensic chemical results actually showed, how they were obtained, how they were stored, and so on.
The cases that present a substantial challenge are worthy of appeal. You may need to have a companion federal appeal for a drug-related charge of possession with intent to distribute, possession of pseudoephedrine (with a methamphetamine conviction) or possession of a chemical constituent (of methamphetamine) in Louisianna state courts.
In addition to all the foregoing, just finding out that charges of drug possession are ghost dope is difficult. The only way to determine whether a case is ghost is to visit a defense attorney. In one study of drug-related crime, it was reported that 6.2 million arrests for drug violations were made, of which 11 percent were marijuana charges, 46 percent were for cocaine, 13% were for heroin, and 23% for other increasingly serious narcotics.
A ghost dope charge will be serious upon conviction, though the severity will depend upon how the particular jurors react to the case as a whole. Such a case is then worthy of careful review to determine whether other avenues are available for a favorable outcome on the charge. A seasoned defender will know where the most defensible issues lie and how to most effectively present or preserve those issues on behalf of the criminally accused.

Ghost Dope Reforms and Litigation

Despite the significant risks associated with recovery of ghost dope increases, there has been little movement on the legal front as to the actual recovery of these damages. The courts have largely avoided the issue, frequently disallowing evidence of extra vegetation based on calls for speculation. For example, in Norcon Power v. Niagara Mohawk, the court rejected reopening Nomcon’s settlement agreement with Niagara Mohawk and admitted evidence of only a small fraction of alleged ghost dope damages. To compound the problem, in so ruling, the court indicated a lack of interest in future litigation of such issues, stating that "judicial economy is best served by … not permitting repetitive litigation of this claim in litigation involving different appropriators" and expressing that "there may be a price to be paid in limiting future litigation." Norcon Power Corp v. Niagara Mohawk Power Corp., 2016 WL 1064460 (N.D.NY 2016) (citations omitted). Furthermore, legislatively, the Alaska legislature has twice rejected legislation that would require disclosure of hydrologic studies in an oil and gas proceeding and require disclosure of terms of sale to maximize state revenues for the extraction of oil and gas to offset the loss of permafrost under the facility. See, e.g., Improved Advisory Reports in Oil and Gas Public Notices, HCR 3, 29th Legis. (1st Reg. 2016); Reducing Noise, Dust and Foul Odors, HB 399, 29th Legis. (2016).

The Future and Fate of Ghost Dope

The future of "ghost dope" laws is potentially headed in the direction of judicial reluctance to impose increased criminal liability. Recent cases suggest a trend in that direction, with courts expressing concern that companies should not be penalized for "inadvertent" disclosures in chemistry publications. The First Circuit decision in the ALZA case is one example as the court placed limitations on the conduct that could result in liability.
However, the specter of adverse FDA or Anti-Kickback prosecution remains , and the government does have the ability to police and regulate the "ghost" disclosures that could lead to criminal liability.
Public health advocates argue that ghost disclosures delay medical progress. On the other side, price controls and increased insurance costs could be blamed on "excessive patenting" which increases the cost of pharmaceuticals. These issues are likely to be fought out in the court of public policy as the courts tend to defer to the legislature.
Health care is a significant portion of our economy and in an election year, it’s clear that it will be one of the top issues debated by candidates of all political affiliations. The future trend of "ghost dope" laws may revolve around growth in health care costs.