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. I belive Michael uses the medicine to relax his body and mind from all the hype from his excellent swimming record. I also believe the government should not prosecute Michael as he was doing whatever it was in the privacy of his own home; not hurting anyone, just medicating his body from the pain he’s endured from miles and miles of swimming. He brought home EIGHT medals. He can’t be that bad smoking the medicine. WE all have a need to relax and the government has taken away practically every right we want and desire. Let Michael alone. Let him strive to do what Michael wants to do; swim for the Olympic Team. God Bless him for being the strong character he is. At least he’s not out there molesting children, killing his own people. He is a good human being and he needs to be left alone.
    Stay strong, Michael

  2. are you fuckin kidding me? google or youtube smokin weed. there are plenty of kids smoking in pics/vids and whatever else.
    he is an exceptional athlete who likes to chill out with some weed. it would be the same if he were smoking a cig or drinking alcohol…wait its not the same, its safer.

  3. What a wonderful article. I can not truly understand the need of this country and it’s law enforcement to harp on pot when extremely dangerous illicit drugs are thrown about rampantly in the streets.

  4. While the rules of evidence and such would apply to Mr. Phelps, who undoubtedly has the benefit of an amazing legal team. Sadly, the lives of most consumers of cannabis in SC would be ruined by this fascist “sheriff” hell-bent on destroying peoples lives.

  5. 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.”
    Well said

  6. Wow, law enforcement is really out for blood on this one. It’s just overkill.
    I hope pot usage goes up a lot because of this, just so it can piss off law enforcement even more.

  7. Really? “It’s normal to smoke pot…” That’s what he should say?
    How about:
    “I chose to indulge in a mind-altering substance. In doing so, I chose a substance that is substantially less harmful than alcohol, a substance that kills a hundred thousand Americans a year. I do not smoke tobacco, which kills nearly a half million Americans every year.
    With all of this talk about being a role model, I should be commended for making a healthier choice.”

  8. Meanwhile…
    California is busting at the seams with prisoners and needs to let nearly 60,000 go.
    Statistics on what those folks have been convicted of would be interesting. Are they letting the people caught with pot go? Or the rapists? etc…
    The photo at the top of the story reminds me of what this season of “Heroes” is turning out to be, a bunch of self-righteous power hungry gun-toting people who have been given power and are now grabbing it by the truck-full. They are totally convinced of the “evils” of those they are hunting down. Ready to shoot and kill on sight, no questions asked.
    Here’s my legal opinion. 🙂 These laws are illegal!
    Here’s my short letter to those wishing to continue this horrible “war”:
    Dear People,
    Why don’t you like your noses? Don’t you realize your nose helps you smell? Your nose provides a place for your glasses. You look very funny without a nose.
    – NewOldSalt
    Although I guess it could be argued they are doing much worse than cutting off just their noses.

  9. must be a jurisdiction where crime is real low. so low as to stoop to such a ridiculous criminal charge. need to go work in the inner cities to see what real crime is.

  10. EXACTLY !!!!!!

  11. Tuesday, 02/10/09
    Historically, not only the marihuana laws but also all the narcotics laws are steeped in legislative White racism and hysteria. Pharmacology seems to have played no significant part in the 1937 Act of Congress.
    Local cops and the DEA don’t want their budgets reduced, which would happen when marihana is legalized for adults in private. I understand that there are judges and prosecuting attorneys who toke up. They are arch hypocrites.

  12. Richland County Sheriff Department
    5623 Two Notch Road
    Columbia, South Carolina 29223
    (803) 576-3000 phone (803) 576-3195 fax
    What a waste of taxpayer money. Why does a Sheriff’s Department need an armored personnel carrier with a 50 cal machine gun mounted on top?
    Why witch hunt a kid and his buddies for smoking a bong? Quit wasting taxpayer money sheriff Rambo.

  13. This isn’t justice, it’s a publicity stunt. I guarantee if Phelps didn’t have his fame, Lott wouldn’t give a damn about the picture.

  14. every one better watch out what they put on you tube this case is a joke once again a fellow toker getting fucked by the man when you have to go to court on theese kinda of charge you are guilty until proven innocent plus then you have to pay all your lawyer fees something ain’t right another example of how unjust are justice system is and who ever micheal phepls advisor are should be fired micheal should have plead the 5th or not said any thing like he is sorry for smoking pot who is sorry for smoking pot know one he should said i am sorry that are justice is so fucked up that people can take allged picture of me with bong to my mouth and sell the picture for a nice profit legalize it what the fuck is wrong with our country

  15. i cant believe that they are going to investigate this.they need to just leave Michael alone for fucks sake. ITS A PLANT!!!

  16. Even my law enforcement friends are laughing at the comments made by the Richland County Sheriff Leon Lott. He’s just another free spirited, follow or make up your own rules, law enforcement pin head. People like him give good, law abiding law enforcement officials a BAD name. He looks like the kind of cop that got beat up all the time in grade school. Now’s his time to get even……Ninja Please!!!!

  17. Good read. I couldn’t believe that they’re wanting to pursue pressing charges on him. I personally think this is a positive thing for us. In that it would expose extreme waste of money and police work(atleast in mainstream media). I hope someone can keep tabs on how much time is spent digging into phelps rather than a murder or missing child in S.C.

  18. Wasn’t aware he would even be in trouble with the law like this. Hasn’t this happened countless times to celebrities without anything happening to them? Is this perhaps due to our direct interference and his standing as a very able athlete?

  19. I like the end statment. Perhaps Phelps being a 14 time olympic medalist should have endorsed the use of marijuna as a normal. And not causing any type of physical impairment.

  20. This is just ridiculous that this is even a issue, Is the police dept. really wasting their time and money on this issue? Sounds like they have nothing else better to do but target those “Pot Smoking Punks” but too me it seems like they just want to make an example out of a well know figure to try and get their message across. I’m really looking forward to Phelps’s High priced Jewish Lawyer having a field day in court. The war on marijuana needs to end and this is a prime example of why!

  21. One thing I find odd is the picture itself. Perhaps I have bad eyesite, but I do not see:
    1) Marijuana
    2) Smoke from Marijuana (Not that I could determine from a picture what marijuana smoke looks like, lets say compared to tobacco or other herbs.
    3) Bubbles in the water pipe.
    4) A lighter being used.
    Like you stated in the article, he has not admitted to anything but regrettable behavior.
    I just find it odd that Sheriff Leon Lott would go to this extreme for a picture. Does he do this on all cases? Should he really be spending time on a simple (non-violent) charge like this? Here is a link to Richland County Crime Statistics for 2000.
    I think I’d prefer Sheriff Leon Lott to concentrate on these crimes other than going after Phelps.
    Do we see a trend here?

  22. If Mr. Phelps is charged with anything relating to this we should just drop a nuclear bomb on ourselves. self sacrifice for the good of mankind.


  24. Do we have a legal team there to help these kids? I hear 8 people from the party were arrested by this fascist hillbilly.
    Any sheriff that tries to justify a .50 caliber machine gun should be immediately removed and hospitalized.
    That weapon is unsafe to bystanders in ANY civilian situation. If it is not unconstitutional for a police force to have this weapon, we need to challenge the constitution and amend it.
    I am a reasonable, responsible citizen, but this guy has me on edge. We should seriously think about engaging him directly in protests and have him removed from any law enforcement position permanently.

  25. I was wondering if the same thing; as soon as it happened I pretty much assumed they *didn’t* have a case and they were just doing what animals do, that is, fluff up their feathers, try to appear more menacing.

  26. I have a question… why is it that pro baseball players can “come out”or “get caught” Using or in the past have used steroids to enhance their athletic abilities. But yet other athletes who “use”or “get caught” with marijuana get the same treatment.why?
    1- marijuana is a class 1 drug…
    2- steroids are a class 3 drug…
    all over the news its not that big of a deal for a baseball player to have done steroids.yet when the greatest athlete in history of the olimpic games gets confronted with a picture of him holding a prefectly LEGAL tabacco pipe(tabacco-no medicinal value) and then gets accoused of smoking weed-(legal in over 8 states for medicinal purposes) out of it with no proof!!! that is like saying a-rod had a picture of himself injecting an unknown substance in his arm and everyone assumes its STEROIDS- when it was really only vitiman b comlex.hahahahhahah

  27. Also why is it that professional athletes cant just get a support group going and freely admit they smoke weed on season and off. is it their sponsers???will they not continue to endorse marijuana users? Sad that this seems to be the case.It is an adult medication that has been used since the begining of time. Also i forgot to mention how marijuana is not a performance inhancement drug—its supposed to make you lazy and not healthy—-if that is correct then why does this fantastic swimmer have the most gold in the history of the olimpic games!!!!im sure he doesnt smoke or use marijuana anymore…lol…ya right!!!Government needs to check themselves!!!! RESCHEDULE!and DECRIMINALIZE

  28. Honestly, does this sherifs office not have anything better to do, and why are people treating this photo like michael phelps has a needle in his arm and hes beating women and children. What needs to be done for marijuana to be taken seriously as harmless and bennificial to our nation. I can almost garantee that if there was a picture of michael phelps siping some red wine on the internet no one would care, but because of the ignorance of our current marijuana lawns and half of our citizens this is a big deal that could affect someones life forever, please, give me a @$#!&* break america!

  29. i wish i could have edited that post. it says lawn instead of laws, and also a question mark should have been inserted after “bennificial to our nation” amongst other typos but i thought those shouldve been pointed out.. sorry

  30. This is all bull, the marijuana legalization movement is reaching it’s peak and people know that, it will soon either be legalized or decriminalized throughout the USA there is no reason that they should be trying to prosecute Phelps. I am a native Marylander and have friends that have swam with Phelps before and I am proud to say that. It’s not like they caught him shooting heroin or anything serious. He is using a drug that has been proven to be less dangerous than both alcohol or cigarettes. If anything I believe Phelps should be congratulated for making a healthier choice than the thousands of others our age.

  31. What a waste of resources. Hate to say it but i live in this sorry state and its a waste of money. let the kid do what he wants along with everyone else.

  32. Michael Phelps already made it clear that he is for the career not the cause. If he didn’t want to have put his career on the line, he should of toked up by himself in a dirty bathroom behind the 7/11.

  33. I don’t think Sheriff Lott likes pot smokers or anybody associated with it, seems like it was under his guidance a guy got killed during a pot raid that yielded 2 pounds a couple of years ago, a father gets killed in his own home over 2 pounds of pot. The pot sure wasn’t going to hurt anybody, wonder if it’s just budget protection or does it enable him to buy more toys for commando raids. Can’t we just all get along, and do the smart thing Educate,Legalize,Regulate, Tax.

  34. this whole thing is so ridiculous it might just be a blessing in disguise. the world is laughing their butts off at these cops posing with machine guns and armor to arrest some peaceful pot smoking college kids. the kelloggs boycott over their announcement of dropping phelps is getting real attention.
    Seeing a successful olympic athletes name attemptedly dragged through the mud over a substance less harmful than beer will open peoples eyes, actually it already has. Seeing those 8 kids lose their financial aid for making a safer choice can sicken a lot of people. the prohibition laws are hurting them more than the marijuana ever could. Their chances for success in life have dropped drastically and all because of the crazy laws, not the marijuana. Anyone with a brain can see the police department is just trying to get its 15 minutes of fame. their idiot antics might just backfire, if it hasn’t already. legalization may be upon us

  35. This is just the kind of publicity needed to fuel the movement for marijuana de-criminalization. I’m not gonna preach to the choir here about the draconian drug laws in our country, but the time is ripe for massive, public, civil disobedience. Imagine if you can……..a ten million persons, 4-20 march on D.C. It’s time to stand up and demand change.

  36. Take all that outrage and talk of protest marches and use it to DEFEAT THIS SHERIFF in the next election.

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