The Marijuana Case Against Michael Phelps

Why it is more hype than substance…
By Norm Kent, Esq., Member, NORML Board of Directors

Richland County Sheriff Leon Lott and Company: ‘Michael Phelps, make our day!’
On this blog, I do not give legal advice. I express legal opinions. The legal opinion everyone is asking me about is can Michael Phelps actually be charged? After all, there is no proof there was anything in the pipe at all. There is no controlled substance to present to a court. There is not even a pipe that could lead to a paraphernalia charge. So how can they possibly prosecute him?
In my law office I have a steel Florida Marlin, stuffed by an ichthyologist, which I caught off the shores of Key West, in the waters of the Atlantic Ocean.
Under the fish, there is a plaque which reads, “Behold the bright, blue Marlin; this creature would not be here today had he not opened his big mouth yesterday.
Michael Phelps should have come by and read it. His publicized admission that he toked from a bong at a frat party in a South Carolina dorm has stirred a whirlwind of controversy and put him in harm’s way.
The real bad news came from the sheriff in the jurisdiction where Michael allegedly toked up, with a pronouncement that he was going to investigate the case to see if he could prosecute young Mr. Phelps.
The sheriff’s public information teased the media: “The Richland County Sheriff’s Department is making an effort to determine if Mr. Phelps broke the law. If he did, he will be charged in the same manner as anyone else…”
Sheriff Leon Lott then commented to a local newspaper about the quality of his case. He stated that, “this one might be a lot easier since we have photographs of someone using drugs and a partial confession. It’s a relatively easy case once we can determine where the crime occurred.” Not so, Sheriff Lott. You are leaving out a lot.
First and foremost, look at Michael’s exact words, never acknowledging he smoked pot. Instead, there was a carefully worded admission that he engaged in regrettable behavior, it might even have been written by a publicist—more worried about that Speedo endorsement than a criminal prosecution. That does not a confession make. Score lap one for Phelps.
Second, what if some classmate who was at the party decides to turn the bong over to the authorities, instead of selling it on EBay? If they find Michael Phelps’ fingerprints on it, along with residue of cannabis, he can arguably be charged with possession of drug paraphernalia, since the pipe is supposedly packed with pot. But how would you know months later that the pot was not added after the fact? How would you prove it was the same bong? The Phelps defense would be that there is no continuous chain of custody that can establish there was contraband in the pipe at the time he held it in his hand. There is no way to show what was in the pipe when he held it. Phelps would win the second leg.
Third, the pictures alone are insufficient as a matter of law to sustain a conviction for possession of drug paraphernalia. Someone would have to come forth and authenticate it as an actual pipe. Someone would have to come forth and attest to the fact that they took the photo. Without real parties to affirm and swear to the authenticity of the alleged contraband, the evidence is entirely circumstantial and legally inadmissible. Phelps wins again.
Fourth, since the law prosecutes possession, and there is no way to prove that there was ever pot in the pipe when Michael exercised dominion and control over it, the charge would be subject to a Motion to Dismiss for failure to establish evidentiary proof of the contraband. Proof of possession typically requires an assertion by a drug testing laboratory, which is an arm of the sheriff’s office, to swear that the substance with which you are charged is actually illegal. There is no pot to test. Phelps wins a fourth round.
Venue, or location is important too. In order for any prosecution to be initiated by a law enforcement agency, someone will have to come forward with a sworn statement and independently establish the location of the alleged act. Typically, a second degree misdemeanor is not an extraditable offense. All Michael has to do is stay out of South Carolina. Phelps wins a fifth lap.
However, do not lose sight over the fact that Michael’s unsolicited statement could be used in tandem with witnesses to convict him after the fact. Just as you do not need a body to establish a murder, if the sheriff brought in a witness who said he put pot in the pipe, a second person who said ‘I handed Mike the pipe with pot in it‘, a third person who said ‘I saw Mike smoke the pipe with pot in it, and I am sure it was pot based on my experience,’ and tied that up with Mike’s admissions and a picture, who someone could say was taken contemporaneously with the criminal conduct, he could arguably go down. But even then there is a problem for the prosecution.
Under the legal doctrine of Corpus Delicti, a defendant’s confession or admission of guilt cannot be introduced until after the state has presented evidence showing that a crime has in fact occurred. So Phelp’s admission cannot come into play or even be used as evidence until the commission of an actual crime is established through other, substantial competent evidence.
This last scenario would require testimony from other witnesses who were at the bong party with Michael. These persons would have to come forward and admit to their own conduct as either equally guilty culprits or co-conspirators. It means they too would be putting their own scholarships and educational privileges at risk, and they are not sitting with millions of dollars in endorsements
In essence, I suspect that very soon the Sheriff will publish a statement that after ‘due diligence,’ his ‘investigation’ revealed an insufficient basis upon which to proceed.
And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.
If he does, I will invite Michael to join the NORML advisory board. I will even buy him his own bong.
Norm Kent, a Fort Lauderdale criminal defense lawyer, can be reached @ He is the publisher of the Broward Law Blog.

0 thoughts

  1. Want more outrage, remember this gem from last summer.
    Want to change it. Since they can’t in good conscience put a donated organ into evil pot smoker they surely could never accept a donation from one. Norml needs to encourage all pot smokers to revoke their organ donation status.

  2. So Michael Phelps is a guy who drinks at parties smokes a little gambles on high stakes games of beer pong and is the all time greatest Olympic medal winner he sounds like a pretty cool guy to me. Michael Phelps is an American Hero. He stood tall and made America proud at the Beijing Olympics. This is how he is treated. Michael Phelps did a tremendous amount of work to achive what he did. Who can forget the pride we felt with the each gold medal Phelps won in China, how can we as Americans forget all of those things and hang a man for smoking a glass water pipe at a college party. It is time that we as a country stand up for the rights of the individual, it’s time we stand together with our neighbors and take collective control of our destinies. Write any congressman or a senator; imagine the weight of millions of emails calling for a change in policy. Lets stop them from arresting college kids at partys in America.

  3. Michael Phelps is the new whipping boy for the hypocritical ethics and rationales of the moralists and prohibitionists. They must disparage him to justify thier beliefs that when you use cannabis you will be worthless to society because of this history of conditioning and propagnda says it is fact but Mr. Phelps has proven them and this theory wrong.
    Michael Phelps is the antithesis to all of this propagnada and conditioning.Look at what you can accomplish with the assistance of cannabis,
    a world class athlete and a gold medal world record holder not a leach on society as the moralists and prohibitionists would have you believe.
    He will be crucified for not following or behaving in the pretext of the propaganda and protocol set forth to one being so successful in this society.
    He has confirmed the war on cannabis is the biggest hypocritical lie ever perpetuated by the goverment and those who justify their professions.
    He has shattered the stereotype and belief system of those who will maintain the window dressing of moralists and prohibitionists and the war on drugs.They will follow thier conditioning and propaganda to the debts of hell knowing full well on their way down the abyss that they are foolish and no longer the majority.
    The essence of immorality is the tendency to make an exception of myself. ~Jane Addams
    The devil loves nothing better than the intolerance of reformers. ~James Russell Lowell

  4. Everyone and Everywhere in the streets on
    4/20/09 at 4:20pm doing 420.
    We can do this if we all commit ourselves!
    Get the word out.
    You can jail a revolutionary but you can’t jail the revolution!
    Fred Hampton

  5. That’s the silliest thing ive ever heard. These people are having a fit like children over such a trivial matter at the expense of a good-natured man’s well being. Michael, if you do smoke pot i assure you there are millions and millions of Americans that share the same peaceful feeling. Maybe all of us stoners should have a public announcement day and see if the police prosecute all of us. The economy would crash just because of an admission of something that would otherwise just be a secret. Should we all be arrested for admitting to smoking pot? My advice is to come to California where you will be accepted for who you are. Screw South Carolina they don’t know what they’re going to be missing. I’m sure you will be accepted with open arms here what with our governator being such a fitness-minded man. Most Californians would be proud to have u as a citizen.

  6. We’re all just preaching to the choir here folks, many people who smoke weed don’t even know about NORML, in the straight community it’s like..huh, normal???
    Unfortunately this Leon Lott joker is one of many law officers across the country who only has balls because he has weapons at his disposal. So, so sad. Mr. Phelps has accomplished more in his short life than this man ever will. And the weed laws in S.C. are draconian, if ordinary citizens knew how their tax money was being wasted the would take to the streets and protest… actually no, they’d stay home and watch American Idol, or some other ‘reality’ show nonsense. I have faith in a small percentage of americans, the rest are hopeless sheep.
    Write an e-mail to this clown Leon Lott, tell him what a fucktard he is, PLEASE- it’s easy and it will take just a few minutes. Just be CIVIL, no swearing.

  7. The richland County Sheriffs Dept has a “commend an officer” section I sent this to Sheriff Lott, I encourage you all to let him know what a Douche Bag he is
    Commend an Officer
    Below is what you submitted to on Wednesday, February 11, 2009 at 06:24:32
    Officer_name: Sheriff Lott
    location: Richland County
    date: Not sure
    R1: am
    incident_description: Just like to commend Sheriff Lott on his use of valuable time that could be used fighting other crime, and maybe solving Richland County’s unsolved murders to go after a REAL menace to society………What Michael Phelps did was incomprehensible. I mean what a sicko!! He took a bong hit…….I hope they lock him up and throw away the key!! people like that should not be walking our streets. So Im glad your dept wastes valuable resources, and time going after someone that did something so petty. While you have Meth Labs,Crackheads,unsolved Murders,rapes,and other Violent crimes…….Kudos to you Sheriff Lott…….You are a true American hero…… I hope the residents of Richland County take this WASTE of taxpayer money into consideration when you come up for re-election
    name: Justin
    City: Springfield
    State: Ohio
    WebFormID: 1
    FORM NAME: Commend an Officer

  8. It’s so much easier for the lazy people who become cops to go after the non-violent than the real bad guys. The bad guy will kill them and they know it. They use the easy cases to make a big name for themselfs and to feed their ego. If you don’t think that is right, just look at the picture of them in their combat gear. Looks like there should be a much better case to spend the tax payers dollar. Who will stand up and say it’s not right? Things must change. Where is your change Mr. Obama? So many need it now.

  9. Without permission from Phelps himself, the photo which was taken in private, can not be used against him. It is a federal offence to record people, without knowledge or permission, in a private area. In public is another story, ask the paparazzi.
    Tabloids can use, user submitted content, but they ask you if you have permission to use it. Obviously, that individual lied.
    Also, the photo, does not indicate the contents of the pipe. The photo-taker, could not possibly identify the contents, without physical proof, as marijuana is not the only thing which smells like marijuana, or looks like marijuana.
    The photo-taker could never admit to “Having smoked”, as it would incriminate him/her, and they too, would be subject to equal punishment. (Though, without the medals, I imagine they might face larger persecution, since they also committed the federal crime of recording someone without permission, which is a constitutional violation of privacy.)

  10. The cell-phone company knows exactly which phone was used to take the picture. The actual picture may also have the phone ID embedded into the photo, if they research the original photo. (Yes, some cell phones do that to images, goto properties… Text info can be added to any photo, like time-stamps, phone number, phone serial number, GPS location, owner name.)

  11. If they decide to prosecute Phelps than im turning my self in and think everyone else should too, or atleast protest it. Hes an American hero doin what no one in the history of the Olympics ever accomplished and just cause hes famous and the young face of America the government wants to prove a point about smoking marijuana. All i have to say is FUCK U Sheriff Leon Lott!! If u go through w/ the investigation. and as for anyone who disagrees just hit this blunt and maybe you will see that us smokers are not criminals were just getting through this thing called life being HAPPY!!

  12. Is that picture from a war zone? Iraq maybe, must be something really big happening there….oh wait, there is and it’s pot!!!! Do they realize how stupid they look? Time to legalize it

  13. Does anyone really believe our government is relevant anymore? In a time of an unprecedented economic crisis, caused by the continuous stupid squandering of our resources, this is how they continue to spend our money. How many thousands of your tax dollars went to fund this stupidity? A case that costs far more than common sense could ever dictate. Personally, with our dollars being wasted the way they are, the sheriff should be sued for wasting money pursuing his moment in the sun. How typical.

  14. If everyone would please call and flood President Barack Obama’s own message line at 202-456-1111 or 202-456-1414 and tell him we want him to REPEAL our Federal marijuana/hemp laws now, every day until our Federal Gov. Repeals all marijuana/hemp laws, then “We the people’s voices will be finally heard loud and clear! Copy this and pass it along! MAKE A DIFFERENCE! CALL

  15. I think the sherriff has arrested 7 i am sure he is leaning on them and i guess that some of them will testify to save their own skin. Thats how cops work he got a warrent from the picture picked them up holding and he will let them all off if the testify and get him a conviction.

  16. This is according to
    South Carolina: If you are under 18, you will need a certified copy of your birth certificate and a notarized statement of parental consent. The minimum age for a female is 14 and it is 16 for a male.
    If the lawmakers of South Carolina think that Phelp’s behavior is disgusting and immoral, they need to get their priorities straight.

  17. ok so phelps has been training his whole life to become an olympic swimmer i think for all that training he has done for his life he deserves to toke up once in a while

  18. Alot good swimmers are potheads, just like most good musicians. Seriously he brought home more gold medals than anyone in the world, the police should not be trying to prosecute him, they should be asking “why should we arrest the best athlete in the world for smoking a substance that obviously doesn’t lower his abilities like cigarretes would???”

  19. its insane that there is even a case being made of this…there is no admissable evidence to prove any crime occured…motion to dismiss granted

  20. yeah..
    I really never though that this would happen with Phelps…after knowing about Phelps in the News.. i was shocked to see this.. But yes, i think the swimmers should be allowed to share if they are not comfortable with them with their trainers.

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