Ark. Code Ann. § 5-64-419 (2026)

Research References

ALR.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Marijuana Offenses Under 8 U.S.C. § 1101(a)(43)(B). 76 A.L.R. Fed. 2d 1.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Cocaine and Crack Cocaine Offenses Under 8 U.S.C. § 1101(a)(43)(B). 76 A.L.R. Fed. 2d 61.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Heroin Offenses Under 8 U.S.C. § 1101(a)(43)(B). 78 A.L.R. Fed. 2d 133.

What Constitutes “Aggravated Felony” for Which Aliens Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Illicit Methamphetamine Offenses Under 8 U.S.C. § 1101(a)(43)(B). 78 A.L.R. Fed. 2d 151.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or Unspecified Narcotics Offenses Under 8 U.S.C. § 1101(a)(43)(B). 79 A.L.R. Fed. 2d 335.

Construction and Application of § 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. § 1182(a)(2)(A)(i)(II)), and Predecessor Provision, Rendering Inadmissible Any Alien Convicted of, or Who Admits to, Violating Federal, State, or Foreign Laws Relating to Controlled Substances. 93 A.L.R. Fed. 2d 1 (2015).

Ark. L. Rev.

Mason L. Boling, Legislative Note: That Was the Easy Part: The Development of Arkansas's Public Safety Improvement Act of 2011, and Why the Biggest Obstacle to Prison Reform Remains Intact, 66 Ark. L. Rev. 1109 (2013).

Bryan Altman, Comment: Improving the Indigent Defense Crisis Through Decriminalization, 70 Ark. L. Rev. 769 (2017).

Case Notes

Continuing Criminal Enterprise.

Simply possessing a controlled substance is not a qualifying offense under the continuing-criminal-enterprise statute, § 5-64-405. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Defenses.

Instruction that defendant was not relieved of criminal responsibility for the possession of controlled substances simply because he was intoxicated at the time the contraband was found in his possession held appropriate since the jury could find that the defendant was not in possession of the controlled substances and was, because of his intoxication, unaware of the presence of the substances. Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979) (decision under prior law).

Evidence.

Where controlled substances were unavailable at time of trial as they had apparently been destroyed by those having custody of them but the officers testified in detail about the finding of such contraband, failure to present the drugs physically goes only to the weight of the proof presented by the state. Williams v. State, 271 Ark. 435, 609 S.W.2d 37 (1980) (decision under prior law).

Evidence Sufficient.

There was sufficient evidence to support a conviction of possession of a controlled substance, methamphetamine, where defendant was driving a truck containing a large amount of pseudoephedrine pills in plain sight, her purse was in plain sight, methamphetamine was found inside of a flashlight in her purse, and she told an officer that she forgot that she left drugs in the flashlight. Constructive possession was established. Champlin v. State, 98 Ark. App. 305, 254 S.W.3d 780 (2007) (decision under prior law).

State sufficiently put forth evidence to support defendant's conviction for felony possession of methamphetamine with intent to deliver and to support his conviction for misdemeanor possession of marijuana. The evidence was sufficient that defendant was in possession of the drugs because defendant had exercised control over a motel room where the contraband was discovered. Jordan v. State, 2016 Ark. App. 255, 492 S.W.3d 543 (2016).

At a minimum, defendant possessed .01 grams of cocaine, a usable amount, and it was well within the jury's province to credit certain testimony that the cocaine found in defendant's pocket weighed .0577 grams; therefore, there was sufficient evidence that defendant possessed a usable amount of cocaine and his conviction was affirmed. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106 (2017).

Substantial evidence supported defendant's convictions for possession of methamphetamine and drug paraphernalia, where the testimony showed that he had tossed and hid items in an attempt to conceal them from the police, and the police recovered a baggie and a pipe that were thrown out of the side of the vehicle. Payne v. State, 2017 Ark. App. 263, 520 S.W.3d 719 (2017).

Circuit court did not err in denying defendant's motion to dismiss the possession of methamphetamine and simultaneous possession of methamphetamine and a firearm charges where a deputy, while pursuing defendant, observed him throw a black object out of the window, the deputy discovered a bag of narcotics and a firearm in the location, and the deputy did not observe any other traffic in the area; thus, substantial circumstantial evidence supported defendant's constructive possession of the drugs and firearm. Terry v. State, 2018 Ark. App. 435, 559 S.W.3d 301 (2018).

Evidence was sufficient to support defendant's conviction for possession of methamphetamine, given that the deputy testified that defendant had a bag containing a crystal-like rock substance in his pants pocket when he was searched and testing revealed that the substance was 4.3995 grams of methamphetamine. Martin v. State, 2019 Ark. App. 19, 567 S.W.3d 558 (2019).

Marijuana.

When marijuana is weighed the stalks are excluded, but the stems and seeds are included. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995) (decided under former § 5-64-401).

Even had appellant's argument regarding the weight of the marijuana been properly preserved, the argument lacked merit; although the expert testified that the bags of marijuana he tested may have included other plant material besides marijuana, defendant was convicted of Class D felony possession of marijuana, which required a finding that he possessed 4 ounces or more, and the expert testified that the total weight of the marijuana tested was 39.65 ounces and that the bags contained mostly marijuana. Cogburn v. State, 2016 Ark. App. 543 (2016).

Possession.

Evidence held to be sufficient circumstances for jury to draw reasonably the conclusion that the defendant had joint possession of the substance even though that possession might have been constructive. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976) (decision under prior law).

Evidence held sufficient to find that it was error for the trial court not to instruct the jury on the lesser misdemeanor charge of possession of controlled substance at defendant's prosecution for possession with intent to deliver controlled substance. Milburn v. State, 260 Ark. 553, 542 S.W.2d 490 (1976) (decision under prior law).

Evidence held sufficient to support a conviction for possession of controlled substance. Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977); Wade v. State, 267 Ark. 1101, 594 S.W.2d 43 (Ct. App. 1980); Williams v. State, 271 Ark. 435, 609 S.W.2d 37 (1980); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Johnson v. State, 23 Ark. App. 200, 745 S.W.2d 651 (1988); Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990); Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993) (decision under prior law).

It cannot be inferred that one in nonexclusive possession of premises knew of the presence of drugs and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control. Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978) (decision under prior law).

Evidence held insufficient to support conviction for possession of a controlled substance. Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978) (decision under prior law).

Joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

There are two separate problems involved in establishing the defendant's “exclusive control” of the premises in order to impute possession; the first is whether the accused is a sole or joint occupant, and the second is, if the accused is the sole occupant, does he have actual exclusive control of the premises. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

Possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it; constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

Evidence held sufficient to enable the jury to infer constructive possession on the part of the defendants. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985) (decision under prior law).

Where the defendant obtained the controlled substance pursuant to a prescription, his possession was lawful even though the defendant failed to use the prescription as directed. Wilson v. State, 290 Ark. 397, 720 S.W.2d 292 (1986) (decision under prior law).

Possession excludes a passing control, fleeting and shadowy in nature; however, this exclusion does not insulate from prosecution those who seek to dispose of contraband upon discovering that the police are approaching. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988) (decision under prior law).

Evidence held sufficient to support conviction for possession of controlled substance and for possession of paraphernalia. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990) (decision under prior law).

Evidence of possession with intent to deliver a controlled substance (marijuana) and possession with intent to use drug paraphernalia held sufficient. Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994) (decided under former § 5-64-401).

Evidence was sufficient to establish constructive possession of marijuana where (1) the defendant was a passenger in his friend's car when the vehicle was stopped by a trooper, and (2) although marijuana found in the car was not in plain view nor on the defendant's person, the officer smelled a strong odor of marijuana emanating from the vehicle as he approached. Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999) (decided under former § 5-64-401).

Evidence was insufficient to establish constructive possession of cocaine where (1) the defendant was a rear-seat passenger in his friend's car when the vehicle was stopped by a trooper, (2) the cocaine was not in plain view, was not under the defendant's exclusive control, and was not found near the seat in which he was seated, (3) there was no testimony that the defendant acted suspiciously, and there was no evidence of any contraband found on his person, and (4) there was testimony that the defendant did not know that there was cocaine in the car until after the police searched the vehicle. Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999) (decided under former § 5-64-401).

Defendant's conviction for possessing at least four ounces but less than 10 pounds of marijuana, in violation of subdivision (b)(5) of this section, was proper because there was sufficient evidence that defendant constructively possessed the marijuana; the marijuana was near defendant when officers raided the house, he told a detective that he lived in the house, and he had some mail in the house. Duggar v. State, 2013 Ark. App. 135, 427 S.W.3d 77 (2013).

Informant's testimony, in addition to defendant's admitting to multiple convictions for drug-related crimes, when paired with the fact that the white powdery substance returned to the officer by the informant was cocaine, were of sufficient force to compel the jury's conclusion that defendant possessed the cocaine. Matlock v. State, 2015 Ark. App. 65, 454 S.W.3d 776 (2015).

Verdict finding defendant guilty of possession of a controlled substance schedule I or II not meth/cocaine and possession of a controlled substance schedule VI was supported by sufficient evidence. A forensic chemist testified that the substance he tested was a partial pill that weighed 0.0824 grams and tested positive for morphine after he crushed it. Foster v. State, 2015 Ark. App. 412, 467 S.W.3d 176 (2015).

Defense counsel made the motion that the State had not proven that defendant was in possession of the cocaine, and by addressing the specific deficiency of proof required to support the circuit court's ruling, in this case possession, defense counsel's motion was made with enough detail to preserve the motion to dismiss. Clark v. State, 2015 Ark. App. 679, 477 S.W.3d 544 (2015).

Evidence supported the State's assertion that the cocaine was found in a place immediately and exclusively accessible to defendant and was subject to his control, as the container with the cocaine was found clearly visible in the passenger seat of defendant's car, and he was alone. Although defendant claimed he had no knowledge of the container and that another person had been a passenger, the circuit court did not find his testimony to be credible. Clark v. State, 2015 Ark. App. 679, 477 S.W.3d 544 (2015).

Substantial evidence did not support the finding that defendant constructively possessed cocaine since the evidence failed to give rise to a reasonable inference that defendant knew the cocaine was in the vehicle he was driving; the only evidence linking defendant to the cocaine was that he was driving the jointly occupied vehicle and the cocaine was found in the front center cup holder. Baltimore v. State, 2017 Ark. App. 622, 535 S.W.3d 286 (2017).

Evidence was sufficient to support defendant's convictions of felony theft by receiving, possession of methamphetamine, and possession of drug paraphernalia, as defendant was in constructive possession of the contraband found at the residence; although another individual also was in the residence at the time of the search, defendant had listed the residence as his address, the contraband was found in plain view in common areas in and around the house, and the fact that defendant was in a bedroom hiding under a bed when the search commenced did not negate the additional factors linking him to the contraband. Mudd v. State, 2018 Ark. App. 628, 565 S.W.3d 154 (2018).

Substantial evidence supported defendant's convictions for possession of methamphetamine and possession of paraphernalia because (1) defendant admitted she had smoked methamphetamine that day, (2) defendant owned the house where the methamphetamine was found hidden in a water-heater closet, (3) defendant could not disclaim possession due to being absent when the search warrant was executed, (4) the jury was not required to believe defendant's testimony suggesting that another person had hid the drugs in her residence, and (5) defendant's knowledge of and control over the contraband found in her residence could be inferred from the circumstances. Knauls v. State, 2020 Ark. App. 48 (2020).

Circuit court properly convicted defendant, upon a jury verdict, of possession of cocaine in a criminal detention facility because he exercised dominion and control over the lockbox in which the cocaine was found where he was alone and sleeping in his cell when the officers began the search, the cocaine was found in the lockbox belonging to defendant and for which only he had a key, and, even if both defendant and his cellmate had access to the lockbox, there was sufficient evidence to establish defendant's constructive possession based on joint occupancy. Moten v. State, 2020 Ark. App. 58 (2020).

Evidence was insufficient to support defendant's conviction of possession of less than two grams of methamphetamine because the State did not present substantial evidence that defendant constructively possessed methamphetamine that was found in a nightstand drawer in a bedroom of a jointly occupied house where the State argued that the presence of the ID of defendant's girlfriend in the room was a sufficient link to defendant. Garner v. State, 2020 Ark. App. 101 (2020).

Probation Revocation.

Defense counsel was allowed to withdraw and the circuit court properly revoked defendant's probation because the circuit court heard sufficient evidence to find by a preponderance of the evidence that defendant had possessed marijuana and thus violated his probation. Brown v. State, 2018 Ark. App. 367, 553 S.W.3d 787 (2018).

Search.

Stop was not justified where there was no testimony that the officer was investigating or preventing a crime when she encountered defendant; therefore, the search was illegal and defendant's motion to suppress the evidence of the cocaine and the firearm should have been granted. Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000) (decided under former § 5-64-401).

In a possession of drug paraphernalia with intent to manufacture and possession of a controlled substance case, the search warrant was valid and the trial court properly denied defendant's motion to suppress the evidence seized from the shared residence where: (1) the distinctive odor of a methamphetamine lab was a valid contributing factor in establishing probable cause for the warrant; (2) the search warrant was supported by more than mere conclusory statements; (3) the initial search of the residence was limited to the common area outside the residence where no warrant was required, and the search inside the residence was pursuant to a search warrant; (4) even if the landlord's statements were completely eliminated, there were still sufficient facts to support probable cause to search the residence; and (5) the partially incorrect address listed in the search warrant did not make the search warrant defective, especially since the affidavit correctly identified the residence and the officer who had obtained the search warrant and had previously been to the residence would later, himself, conduct the search. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003) (decided under former § 5-64-401).

While federal marshals were arresting defendant at his apartment for a violation of probation, the marshals discovered what they suspected to be cocaine in the bathroom and called the city police, who determined that the substance in the bathroom, which was in plain view, was cocaine, however, the city police officers improperly searched a black bag in another room without defendant's consent; thus, if the evidence found in the illegal search of black bag motivated the officers to obtain a search warrant, the illegal search would preclude application of the independent-source doctrine and the evidence would be inadmissible. Lauderdale v. State, 82 Ark. App. 474, 120 S.W.3d 106 (2003) (decided under former § 5-64-401).

Sentence.

Defendant was charged as a habitual offender, having been previously convicted of four felonies, and the jury convicted him of a Class D felony for possessing a usable amount of cocaine, and thus the jury could have imposed punishment within a range of zero years to not more than 15 years in prison; the circuit court explicitly considered defendant's criminal history and determined that an alternative sentence of probation would not be appropriate, and this was not an abuse of discretion, but an exercise of it. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106 (2017).

Usable Amounts.

Conviction was reversed where defendant was found to be in possession of a bottle which had less than a usable amount of cocaine. Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990) (decided under former § 5-64-401).

It was proper to allow both a narcotics officer and a chemist with the state crime lab to testify that, in their opinion, .01 grams of crack cocaine was a usable amount. Terrell v. State, 35 Ark. App. 185, 818 S.W.2d 579 (1991) (decided under former § 5-64-401).

The trial court did not err in refusing to instruct the jury that for a quantity of drugs to constitute a usable amount it must be sufficient “to have an effect on the human system”. Terrell v. State, 35 Ark. App. 185, 818 S.W.2d 579 (1991) (decided under former § 5-64-401).

Conviction for possessing a “usable amount” of cocaine was upheld, even though chemist could not testify as to the effect of twelve milligrams on the human body, but could testify that he had seen pieces of crack cocaine of that size loaded into a pipe. Buckley v. State, 36 Ark. App. 7, 816 S.W.2d 894 (1991) (decided under former § 5-64-401).

Evidence was sufficient for the fact finder to determine that the substance was of a measurable amount where the cocaine was capable of quantitative analysis, could be seen with the naked eye, was tangible and could be picked up. Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993) (decided under former § 5-64-401).

Although there was no evidence as to the weight of the phencyclidine (PCP), there was substantial evidence to support the finding that a usable amount was detected on a marijuana cigarette that had been dipped in PCP. Williams v. State, 47 Ark. App. 143, 887 S.W.2d 312 (1994) (decided under former § 5-64-401).

Defendant's conviction for possession of methamphetamine was reversed because the state offered no evidence that a usable amount of the contraband existed; the amount of residue on the plastic bags could not be weighed. Porter v. State, 99 Ark. App. 137, 257 S.W.3d 919 (2007) (decided under former § 5-64-401).

Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), means what it holds; possession of a container with a trace amount or residue of contraband that is neither measurable nor usable is not possession of a controlled substance under this section. Porter v. State, 99 Ark. App. 137, 257 S.W.3d 919 (2007) (decided under former § 5-64-401).

Evidence was sufficient to convict defendant of possession of less than two grams of cocaine, as the State proved that defendant possessed a usable amount of cocaine. The State's expert witness testified that defendant possessed four milligrams of cocaine powder and testified as to the specific process used to measure the cocaine; the expert witness's description of his process revealed that the cocaine was capable of quantitative analysis, could be seen with a naked eye, was tangible and could be picked up, and was a clearly measurable amount. Christian v. State, 2018 Ark. App. 594, 566 S.W.3d 527 (2018).