The Consequences Patrick Chung Could Face For His Felony Cocaine Charge

Michael McCann

New England Patriots safety Patrick Chung has been indicted for felony possession of cocaine. The cocaine was found on Saturday, June 25, in a home belonging to Chung. The home is located in Meredith, New Hampshire, a town that has fewer than 7,000 residents and is situated alongside Lake Winnipesaukee. The indictment was first reported by Laconia Daily Sun writer Michael Mortensen.

Chung, 32, was indicted for possession of a controlled drug under the New Hampshire Controlled Drug Act. The Act is codified under Chapter 318-B of the state statutes. The Act makes it illegal “for any person to manufacture, possess, have under his control, sell, purchase, prescribe, administer, or transport or possess with intent to sell, dispense, or compound any controlled drug, or controlled drug analog, or any preparation containing a controlled drug.”

New Hampshire has two felony categories, A and B, with B being the lower level. Chung faces a Class B offense.

A grand jury indicts Chung: Understanding the limitations of a grand jury

Chung wasn’t arrested by police on June 25, and thus wasn’t booked. Instead, the charge stems from an indictment returned by a Belknap County grand jury that had inquired into Chung’s possible criminal conduct. The grand jury returned a true bill (i.e., indictment) on Aug. 8.

Keep in mind, grand jury proceedings are very different from jury proceedings. Grand jury proceedings are run by prosecutors and are thus not neutral. Only prosecutors have the right to call witnesses and introduce evidence. The target of the proceedings, Chung in this instance, plays as a limited role as desired by prosecutors. It’s unclear if Chung was made aware of the grand jury or if he testified at the proceedings, which were conducted in private.

New Hampshire grand juries include between 12 and 23 people. Only 12 of the grand jurors need to find probable cause of a crime. This means a unanimous vote to indict is not required to indict unless there happen to be only 12 grand jurors empaneled.

Also, a vote to indict is not a vote to convict. Probable cause refers to a finding that there are sufficient facts and circumstances to believe a crime occurred and that the defendant is responsible. A conviction, which would occur after a jury trial, refers to certainty beyond a reasonable doubt the defendant is guilty. While Chung being indicted is a significant development, he still enjoys a presumption of innocence.

The prosecution will be led by the office of Belknap County Attorney Andrew Livernois. Chung is set to be arraigned on Aug. 28 in Belknap Superior Court. At that time, Chung and his attorneys will receive a statement of the prosecutor’s alleged facts. Chung will presumably plead not guilty. The presiding judge could also set bail. Chung, who per Spotrac has earned $28.7 million over his 10 seasons in the NFL, would then post it.

It is unclear how much cocaine was found in Chung’s possession or the specific circumstances in which the police made the discovery.

A plea deal could benefit Chung as a defendant but hurt him as an NFL player

Given that Chung was charged with possession, rather than a more serious offense for manufacturing cocaine or intent to traffic cocaine, the amount discovered must have indicated personal use. An absence of nearby suspicious items, such as bags and cash, would also be consistent with a finding that the drugs were for use rather than for sale or distribution.

Still, a class B felony is a worrisome charge. Under New Hampshire law, a conviction would carry a potential sentence of three-and-a-half to seven years in prison.

If Chung has no record of prior offenses, his attorneys may be able to negotiate a plea deal where he would receive much less time behind bars or even no time. In lieu of incarceration, Chung could receive a combination of a suspended sentence, probation, fines and counseling. But he would likely have to admit, either through a guilty plea or no contest plea, that he is legally responsible.

An admission along those lines would damage Chung’s NFL career. The NFL and NFLPA’s Policy and Program on Substances of Abuse authorize NFL commissioner Roger Goodell to suspend Chung for up to four games if Chung (who would be a first-time offender of the policy) acknowledges possession, or is otherwise found to have possession, of illegal drugs.

In recent years, the NFL has suspended players for illegal possession of marijuana. In June the league suspended Dallas Cowboys tight end Rico Gathers, who had been arrested in Texas for marijuana possession back in August 2018, for one week. The suspension reflected Gathers reaching a plea deal with prosecutors in March 2019.

Obviously, a cocaine charge is far more serious than a marijuana charge, particularly given that more than 30 states have legalized marijuana for certain purposes. Cocaine offenses also seldom arise with NFL player arrests, but seldom doesn't mean never—as the Sam Hurd saga showed. If Chung’s legal maneuvers lead to him acknowledging possession of cocaine, there is a good chance he’d receive the max four-game suspension.

That said, the league has a track record of waiting to punish players who are arrested for possession of cocaine until their legal proceedings are complete. Expect that to happen with Chung. In March 2009, Denver Broncos defensive tackle Marcus Thomas was arrested on suspicion of cocaine and jailed for a night. Two months later, however, the charge was dropped. Thomas and his attorneys showed the cocaine belonged to another person. The NFL did not suspend Thomas.

The Patriots would also be more inclined to release Chung, who is set to earn $6 million in the 2019 season if he admits to possessing cocaine. In a tweet on Thursday, the team says it has no comment “while his judicial proceedings take place.”

It’s unknown if Chung informed head coach Bill Belichick or other Patriots officials about the June 25th incident, or if Belichick and the team heard about it for the first time on Thursday—two months after it occurred.

Chung’s possible defenses

Should Chung mount a legal defense, the circumstances in which police officers allegedly found cocaine in Chung’s possession will prove critical. The host of 98.5 The Sports Hub, Jim Murray, tweeted on Thursday that, according to a source, police entered a home belonging to Chung after the home’s alarm was tripped. The alarm signaled a possible break and entry. While checking the home, officers found cocaine.

It’s unknown if the home, which is about three hours away by car from Foxboro Stadium, was occupied when the police arrived. A statement released by Livernois late Thursday noted that Chung was not arrested at the time the police found the cocaine.

Chung's connections to the home are implied in the indictment. The indictment indicates that he is currently, or was on June 25, a resident of Meredith.

To the extent the cocaine was found in the home but not on Chung himself, he and his attorneys could offer defenses.

Under the Fourth Amendment’s protection from unreasonable searches and seizures, the police generally cannot enter a person’s home without a warrant. There are a variety of circumstances, however, where the police are allowed to enter a person’s home without a warrant. One is when a home alarm goes off and there is reason to believe burglary or other crimes may have been committed. If no one is home to tell the police it’s a false alarm, officers might enter the property.

Chung might argue that even if officers lawfully entered the home, they lacked probable cause to search it in the manner which led to the cocaine’s discovery. If the “search” included aggressively looking through items in the house, Chung might insist such aggressive probing was unwarranted—and thus lacked probable cause—to simply assess whether a burglary occurred. However, if officers saw the drugs in plain sight, they would have probable cause to explore charges against persons connected to the home.

Chung could also argue that it was not his cocaine. If officers found the cocaine in the house but not on Chung himself, prosecutors will argue there was “constructive possession.” Constructive possession is different from actual possession. Constructive possession refers to when the defendant doesn’t physically possess drugs but, because of where the drugs were found and the defendant’s control over that area, the defendant is considered legally responsible. Drugs found in someone’s car or home are two traditional examples of constructive possession. Notably, the indictment mentions Chung was charged for “having in his possession or under his control” (emphasis added).

In an opinion authored by future U.S. Supreme Court Justice David Souter back in 1990, the New Hampshire Supreme Court held that constructive possession of cocaine in a home is found when the defendant has a “demonstrated legal authority to regulate the activities within” the home. For Chung to avoid a finding of constructive possession, he might argue the cocaine belonged to another person who stayed at the house or that that it was found in an area of the home which another person generally controlled.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.