Need fast advice fast Visiting a common nuisance guilty or not

[silverjosh]

What is the name of your state (only U.S. law)?
Indiana
This friday I was in my friends Dorm room when the police came. The room smelled of marijuana but we were not smoking at the time. The room was searched and marijuana and a scale were found in a drawer. Neither of us admitted to being under the influence so here is my question; Is the smell of burnt marijuana and red eyes enough evidence to say i knowingly entered a building of criminal nuisance? Keep in mind that the evidence found was concealed.What is the name of your state (only U.S. law)?

[justalayman]

IC 35-48-4-13
Visiting or maintaining a common nuisance
Sec. 13. (a) A person who knowingly or intentionally visits a building, structure, vehicle, or other place that is used by any person to unlawfully use a controlled substance commits visiting a common nuisance, a Class B misdemeanor.
(b) A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times:
(1) by persons to unlawfully use controlled substances; or
(2) for unlawfully:
(A) manufacturing;
(B) keeping;
(C) offering for sale;
(D) selling;
(E) delivering; or

(F) financing the delivery of;
controlled substances, or items of drug paraphernalia as described in IC 35-48-4-8.5;
commits maintaining a common nuisance, a Class D felony.
As added by Acts 1976, P.L.148, SEC.7. Amended by Acts 1977, P.L.340, SEC.108; P.L.210-1986, SEC.4; P.L.165-1990, SEC.13; P.L.1-1991, SEC.207; P.L.31-1998, SEC.11; P.L.17-2001, SEC.27.

is that the statute you are charged with?

[silverjosh]

Yes this is the charge.

[justalayman]

well, by the actual statute, you are guilty unless you can claim you had no idea anybody in the dorm had ever done drugs in the dorm.

It is kind of a catch all law they use. It is so ridiculous that if I had known that a person used drugs in the building, ever, I would never be able to enter legally.

To me, that makes it an ambiguous law and should be removed from the books.


So, what do you do?

In your case, you will be hard pressed to claim not guilty. Get an attorney, NOW before you say anything else to anybody about this.

I would also make a complaint to the school and blame them for allowing a common nuisance to continue on their premises. As it is, legally, from here on out, anybody that is aware that a person used drugs in that building and enters is guilty of visiting a common nuisance. I do not think the school would like the papers to be notified they are in possession of a common nuisance and have failed to do anything about it.

[HighwayMan]

Why were the police called to begin with?

I would say the search is defintely questionable. If it was a motor vehicle then it would be fine, but it was not.

[justalayman]

search is irrelevant. If the building is a known common nuisance, as long as the victim, I mean defendant admits to knowing there had been drugs in that building at some time, they are in fact guilty.

a common nuisance is a label that is permanent. statute simply states that:

) A person who knowingly or intentionally visits a building, structure, vehicle, or other place that is used by any person to unlawfully use a controlled substance commits visiting a common nuisance, a Class B misdemeanor.

in a really loose interpretation, you would not even have to be aware it is a common nuisance (I know somebody that got charged due to that) as long as you "intentionally" visit the building, you are guilty.

a really really bad law in my mind.

[Stevef]

Originally Posted by justalayman

in a really loose interpretation, you would not even have to be aware it is a common nuisance (I know somebody that got charged due to that) as long as you "intentionally" visit the building, you are guilty.

a really really bad law in my mind.

Someone really needs to twist one up in the courthouse.

"I'm sorry, your honor, I can't go to my hearing. The courthouse is a common nuisance"

[HighwayMan]

I got a little turned around there with the charge.

The statute says "controlled substance". Marijuana is not a controlled substance. So what's the basis of the nuisance? Or do they have their own definition of controlled substance?

I have to say that has to be one of the most ridiculous criminal statutes I have ever seen!

[justalayman]

Originally Posted by HighwayMan

I got a little turned around there with the charge.

The statute says "controlled substance". Marijuana is not a controlled substance. So what's the basis of the nuisance? Or do they have their own definition of controlled substance?

I have to say that has to be one of the most ridiculous criminal statutes I have ever seen!

Huh? MJ not a controlled substance? Where are you from?

[url]http://www.in.gov/legislative/ic/code/title35/ar48/ch1.html[/url]

[url]http://www.in.gov/legislative/ic/code/title35/ar48/ch4.html[/url]

[justalayman]

Originally Posted by Stevef

Someone really needs to twist one up in the courthouse.

"I'm sorry, your honor, I can't go to my hearing. The courthouse is a common nuisance"

very good point. maybe I know...


never mind. I didn't say anything.

[CdwJava]

I think the terminology "is used" explicitly indicates that the place has to be used for that purpose. So, KNOWINGLY visiting a place where it is commonly used can be a crime. I do not believe the intent of the legislation was to criminalize unwitting behavior, and, indeed, the section requires the person being charged KNOWINGLY enter such a location.

There may well be case law refining it, but I do not think that any reasonable person is going to use this to charge someone who walks into a home where someone smoked a blunt a couple months earlier. We have a similar law in CA but it is rarely applied. The intent here is to keep people from operating what used to be called "opium dens" where people congregate for the purpose of using dope.

- Carl

[HighwayMan]

Originally Posted by justalayman

Huh? MJ not a controlled substance? Where are you from?

New York. It is not a controlled substance here, according the the New York State Penal Law.

I just checked the DEA website and see it is considered a controlled substance by the feds. Oh well.

[justalayman]

although the charges were ultimately dropped (or actually, not prosecuted), I do know a person that was initially charged for merely being in a car where one of the occupants (not the person I know) went into the house while the others stayed in the car for the visiting a common nuisance.

The person I know had no idea as to the activities that had ever taken place at that house as they had never been there before and did not even know the occupants of the house.

the person I know claims ignorance as to why they had even gone to the house. ( I do believe her)

I think the terminology "is used" explicitly indicates that the place has to be used for that purpose

well, short of case law defining and refining the term, "is used" would simply mean that drug use has or had taken place there. There is no definition of how much, how often, or even when.

In fact, the following charge:

(b) A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times:
(1) by persons to unlawfully use controlled substances;

1 or more times and any drug use (other actions follow as well).

and I understand your inference of maintaining the house for drug use, but it does not state that in this statute and it is not applied that way here in Indiana. It is simply a catch all law.

There may well be case law refining it, but I do not think that any reasonable person is going to use this to charge someone who walks into a home where someone smoked a blunt a couple months earlier.

How about having no idea drugs had ever been in the house as well as the person charged not actually going into the house? (situation above)

the problem; in Indiana, it is commonly applied. As I stated previously, it is used as a "catch all" when they want to charge something and there is nothing else that can be charged. The statute is written so loosely that just about anybody can be charged with this crime sometime.

and notice, it does not say "enter", it says "visit" a visit could mean simply going to the house and standing outside. Again, too ambiguous.

thanks for the input Carl.