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Police Possession of Contraband

It is illegal to possess contraband, such as narcotics or images of chi1d pornography. Recent news about the R. Kelly prosecution brings up a question that I occasionally hear: If it’s illegal to possess narcotics or chi1d pornography, how can cops and prosecutors legally possess it during investigations and prosecutions?

Of course, one answer is practical: It would be quite silly for the law to prohibit the police and prosecutors to possess contraband for law enforcement reasons. If that were the case, no such crimes could be prosecuted, because no one would be willing to investigate or prosecute the crimes.

Fair enough. But how about a legal answer? It seems there are two possibilities. First, perhaps the law is overbroad but we rely on prosecutorial discretion to make it more sensible in practice. Alternatively, perhaps there is some legal doctrine that excuses police and prosecutors from the contraband laws when possession is in the course of their official duties. If there is such a law, however, I confess I don’t know what it is.

Does anyone know the answer to this? Informed answers are much preferred to random speculation.

UPDATE: Marty’s comment suggests what seems to be the right answer, namely a canon of construction that criminal statutes do not apply to law enforcement officers acting in the course of their official duties if it would lead to absurd results.  This canon was noted in the Nardone case in 1937; the Nardone case cites a 1921 California case, Balthasar v. Pacific Elec. Ry. Co, 202 P. 37 (Cal. 1921) that traces it back to Blackstone (not altogether convincingly, but that’s a bit beside the point).  Very interesting.

ANOTHER UPDATE: The Nardone case also cites a 1920 Washington state case involving a sheriff speeding on a motorcycle to catch a man who stole a car. The sheriff who was speeding to catch the thief was himself charged with violating the speeding laws.  The Washington Supreme Court ruled that the sheriff was not liable, relying heavily on a common sense policy argument:

That the enforcement of statutory or ordinance provision limiting the speed at which a motor-propelled vehicle shall be driven over a public highway against a peace officer would have a tendency to hamper him in the performance of his official duties can hardly be doubted. The case in hand affords an illustration. Here the felon was fleeing with a stolen automobile. Naturally he would pay but little regard to the minor offense of exceeding the speed limit. And, if the sheriff must confine himself to that limit, pursuit in the manner adopted would have been useless, since the felon could not have been overtaken. The rule contended for would also hinder the public peace officer in enforcing the statutes regulating traffic upon the state highways. The statutes contain somewhat stringent regulations as to the speed a motor-propelled vehicle may be driven over them, and contain no exception in favor of the peace officers whose duty it is made to enforce them. If these officers may not pursue and overtake one violating the regulations without themselves becoming amenable to the penalties imposed by them, the old remedy of hue and cry is not available in such instances, and many offenders who are now brought to answer will escape.

State v. Gorham, 110 Wash. 330 (1920).  A very interesting case, isn’t it?