Are you guilty if you don’t know that the mushrooms you are eating are illegal?
Over the past six months, the Mr. Cannabis Law team has received several inquiries from clients interested in selling magic mushrooms and sclerotia truffles in Florida; and the clients are insistent that magic mushrooms and sclerotia truffles are legal in Florida based on the client’s google searches. At first, I thought to myself that these clients must be “tripping.” But, upon further research, I realized that this misconception is based on a reasonable misunderstanding of two basic legal concepts: (1) facial v. as applied constitutionality; and (2) mens rea.
The Florida Case – Fiske v. State
The case that is causing much of the confusion is the 1978 case of Fiske v. State, 366 So. 2d 423, 424 (Fla. 1978). In Fiske, the defendant was arrested after leaving a field. Police officers found a bag of wild mushrooms near him. Id. The mushrooms were taken into the custody and the mushrooms were tested. Id. The tests concluded that the mushrooms contained psilocybin. Id. Under the Florida Statutes, “any material which contains a quantity of the hallucinogenic substance ‘psilocybin’” was labelled a Schedule I controlled substance. Id. Importantly, the statute does not specifically list wild mushrooms as a Schedule I controlled substance. The defendant was found guilty for possession of the psilocybin, which was a felony of the third degree. Id. The defendant appealed his case to the Florida Supreme Court.
The Florida Supreme Court determined that the Florida Statute was unconstitutional “as applied” to the defendant. Id.The court reasoned that the statute did not mention magic mushrooms or any other psilocybin organic substance that can grow naturally in the wild. Id. Furthermore, the court determined that if the statute specified that psilocybin can be found in certain identifiable mushrooms, and named the mushrooms that contained psilocybin, the statute would give notice to a prospective defendant that possession of certain mushrooms could be a crime. Id. Without the Florida Statute specifying that naturally growing mushrooms could contain psilocybin, a defendant does not have the proper notice or knowledge that some naturally growing mushrooms may contain a Schedule I substance. Id. Thus, the court determined that the Florida Statute was unconstitutional “as applied” because the statute did not give the defendant a “fair warning” that possession of the naturally grown mushrooms he possessed was a crime. Id. Therefore, the defendant did not have the required mens rea to be found guilty of possession of psilocybin. Id. Yet, the court made clear that the Florida Statute is “facially” constitutional because the statute can be applied in other circumstances where the defendant had the requisite mens rea. Id. Importantly, the Florida Statute has not been revised since Fiske and the Florida Supreme Court has not reversed its position in Fiske. Thus, Fiske is still good law in Florida.
“Facial” v. “As Applied” Constitutionality
In order to gain a full understanding of the Fiske holding, one must understand the the difference between “facial” v. “as applied” constitutionality. A statute’s constitutionality can be challenged “facially” or “as applied.” A statute is unconstitutional “on its face” when it would be unconstitutional in every situation. In contrast, a statute is unconstitutional “as applied” when the application of the statute is unconstitutional because of the fact-specific circumstances of the case. When a court finds that a statute is “facially” unconstitutional, the court will void the entire statute since it is unconstitutional under any circumstances. In contrast, when a court finds that a statute is unconstitutional “as applied”, the statute will remain in force but the circumstances for which that statute is constitutional will be narrowed. In Fiske, the court found that the statute was unconstitutional “as applied” to the facts and circumstances of the case.
“Mens Rea” refers to a person’s mental state at the time of carrying out the act of a crime. Because of due process, a person’s mens rea must have some sort of level of intent in order to be guilty of a crime. In other words, a person who has committed a criminal “act” cannot be guilty of a crime unless such person has the requisite mens rea when committing such criminal act. A prosecutor in a criminal case must prove mens rea beyond a reasonable doubt. If a statute does not put an individual of ordinary intelligence on proper notice of the nature of the crime, an individual cannot have the required mens rea to commit such crime. While ignorance of the law is no excuse, that principal “may be abrogated when a law is so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct.” United States v. Caseer, 399 F.3d 828, 837 (6th Cir.2005). In Fiske, the court found that the defendant did not have the requisite mens rea since the defendant was not aware that magic mushrooms contained psilocybin and the defendant was not on notice that magic mushrooms contain psilocybin since magic mushrooms were not specifically listed in the statute.
Key Takeaways from Fiske v. State
1. Fiske stands for the general proposition that criminal intent is required to commit a crime.
While many believe that the holding in Fiske means that possession of magic mushrooms in Florida is legal, such is not the case. Instead, Fiske stands for the general proposition that criminal intent is required to commit a crime. Florida Statute Section 893.03(1)(c)(33) lists psilocybin as a Schedule I controlled substance in Florida and has not been updated following Fiske to specify which natural substances include psilocybin. This means that a defendant may not be on notice as to which natural substances contain psilocybin and thus the defendant would not have the requisite mens rea. This issue is raised in Florida Jurisprudence, Second Edition March 2020 Update, which states, “the classification of ‘psilocybin’ may violate due process as applied to a defendant whose conviction arises out of possession of a bag of wild mushrooms that are determined to contain the drug, as the statute does not advise a person of ordinary and common intelligence that the prohibited substance is contained in a particular variety of mushroom.Therefore, the issue of Florida Statute Section 893.03(1)(c)(33) not providing criminal defendants proper notice as initially raised by Fiske in 1978 remains an unresolved issue today.
2. Fiske does not stand for the proposition that a natural substance that is not specifically listed as a controlled substance (i.e. magic mushrooms) is legal when it includes another natural substance that is specifically listed as a controlled substance (i.e. psilocybin).
The Fiske case did NOT hold that a natural substance that is not explicitly listed as a controlled substance (i.e. magic mushrooms) is legal when it contains a controlled substance (i.e. psilocybin). Instead, the court based its decision on the lack of evidence demonstrating that the defendant had knowledge that magic mushrooms contain psilocybin. See also United States v. Hassan, 578 F.3d 108 (2d Cir. 2008) (holding that khat is an illegal substance even though it is not explicitly listed as a controlled substance since khat contains cathinone which is a controlled substance; but also noting that the prosecutor would need to have proven beyond a reasonable doubt that the defendant knew that khat contained cathinone); United States v. Mire, 725 F.3d 665, 679 (7th Cir. 2013), (holding same); State v. Reckards, 2015 ME 31, 113 A.3d 589, 594, (holding same).
3. Fiske makes it very difficult for prosecutors in Florida to prosecute defendants for possession of psilocybin unless the prosecutor has evidence to prove beyond a reasonable doubt that the defendant had knowledge that the magic mushrooms contained psilocybin.
The precedent established by Fiske makes it very hard for prosecutors in Florida to prosecute a defendant for possession of psilocybin. If magic mushrooms were explicitly listed as a controlled substance in Florida’s statutes, then a defendant would be on notice and would not be able to claim ignorance of the law. But, since magic mushrooms are not listed as a controlled substance in Florida’s statutes, the defendant is not on notice and thus the prosecution must prove beyond a reasonable doubt that the defendant knew the magic mushrooms contained psilocybin. Without any modification to the Florida Statutes, a prosecutor will find it difficult to prove a defendant actually knew the mushrooms in the defendant’s possession contained psilocybin.
4. Fiske does not support the commercialization of magic mushrooms containing psilocybin or sclerotia truffles containing psilocybin.
The Fiske case does not offer much support to businesses that want to sell products that contain psilocybin. If a business were to grow, process, or sell a naturally-grown substance that contained psilocybin (ie magic mushrooms or sclerotia truffles), all business activities would likely be criminal. Following Fiske, the business and its agents would have the requisite mens rea or criminal intent to commit a crime. Specifically, if a business advertises or otherwise markets its psilocybin-based product, the business is operating with the requisite criminal intent of possessing and handling a controlled substance – psilocybin. To create commercial opportunities for psilocybin products, the Florida Statute would need to clarify which products that contain psilocybin are explicitly prohibited. Otherwise, businesses selling magic mushrooms or sclerotia truffles are operating at their own peril.
 16B Fla. Jur 2d Criminal Law—Substantive Principles/Offenses § 1319