Plants - Drugs Mind - Spirit Freedom - Law Arts - Culture Library  
Support Erowid Center with a $50 Donation
And get a blacklight-inked "Erologo" tee
Summary of Psilocybin Mushroom Law in US States
The main thing to know about Psilocybin mushroom law in the US is that every state has psilocybin & psilocin, the primary psychoactive ingredients in the mushrooms, listed in their controlled substances acts. The only issue which has confused the issue of the clear illegality of psilocybin mushrooms is the fact that for some reason the states do not specifically list the mushrooms themselves. The Florida Supreme Court ruled in 1978 that the plain language meaning of "container" or "material containing" a controlled substance could not include a live mushroom. Unfortunately other state courts have subsequently ruled that it is reasonable to consider living plants 'containers' of schedule I substances, even if the result of this interpretation is completely absurd.

State by State Mushroom Case Law:

Iowa: One important case is Iowa V. Atley (1987) where the Iowa Supreme Court ruled that Florida's Fiske ruling did not apply because the defendent was shown to know that they were producing psilocybin, a scheduled substance, using Kansas State v Justice as authority: "...we find that the analysis utilized in Fiske to be non-persuasive in the case before us where the defendant's knowledge is established." See also Atley's failed Petition attempt to have the US Supreme Court Review the decision.

Florida: The most important Florida case on psilocybin mushrooms was a case from 1978 called Fiske V Florida. The Supreme Court of Florida found that Psilocybin mushrooms could not reasonably be considered "containers" of the schedule I substance psilocybin. The court essentially held that if the Florida legislature wished to make wild psilcybin mushrooms illegal, it would have to name them in the law and Florida. The court ruled: "the statute does not advise a person of oridinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute, therefore, may not be applied constitutionally to [the defendent Fiske who was caught with freshly picked psilocybes]." The Florida Supreme Court does not address in Fiske V Florida whether Fiske would have been breaking the law if the prosecution had proven Fiske knew the mushrooms contained psilocybin and subsequent cases in other states have found that the knowledge component is the deciding factor (Iowa, Kansas, etc).

Illinois: In the Illinois case People v Dunlap (1982), the Illinois Appellate Court ruled the reverse of Florida's Fiske case by finding that the phrase "material containing" has a common meaning that would be understood to include living mushrooms: "the term "material" is commonly used to refer to an item which is the source for something else rather than a finished product. A person of ordinary intelligence would be amply apprised that possession of or dealing in mushrooms containing Psilocyn is illegal." The court, however, chose to also differentiate their case from Fiske "the defendant in Fiske was found in possession of apparently wild mushrooms, whereas the defendant in this case was growing the confiscated mushrooms." and went on to support the 'naive defense' further with "An individual who cultivates or otherwise possessed Psilocybe mushrooms without knowing them to contain psilocyn [sic] would not be prosecuted successfully."

The Illinois Dunlap court, however, was very clear that it disagreed with the finding of Fiske "[Florida's Supreme Court] held by implication, that the only natural reading of the phrase 'any material' would be limited to a controlled substance 'in capsule, pill, or similar form.'... In our view, this is an overly restrictive and artificial interpretation of that language."

Indiana: In an Indiana case, Guy Bemis V Indiana, a defendent found with dried psilocybin mushrooms argued that the Indiana law wich also did not mention mushrooms, but just the chemical psilocybin, was unconstitutionally vague per Fiske. The Indiana Court of Appeals found that Fiske did not apply because the defendent was knowingly growing the mushrooms for their psilocybin content. In an earlier case, Kail v State (1988, 528 ne2d 799), the Indiana Court of Appeals ruled that because psilocybin mushrooms were not specifically listed in the law, the state had to prove that the defendent knew of the presence of the scheduled psilocybin in the mushrooms.

Kansas: In Kansas, an appeals court ruled in the case State v Justice (1985 - 704 p.2d 1012) that psilocybin mushrooms could be considered containers of psilocybin if the defendent was aware of the psilocybin in the mushrooms. They ruled that Florida's Fiske only applied where there was no knowlege of illegal conduct: "Of controlling importance in the Florida court's decision was the complete absence of any evidence that defendant knew that the mushrooms in his possession contained psilocybin. The court did not strike down the statute itself as unconstitutional but held that it could not be applied to a defendant who was not shown to have criminal knowledge. In other words, the court held that as to people who possess mushrooms without knowing they contain psilocybin, the statute failed to provide a sufficient warning of the criminality of their conduct."

New Mexico: A New Mexico appels court ruled on June 16, 2005, that growing psilocybin mushrooms for personal consumption could not be considered "manufacturing a controlled substance" under state law. Growing hallucinogenic mushrooms not illegal, state appeals court rules - June 16 2005. However possession of psilocybin-containing mushrooms is a misdemaenor and it is a third degree felony to sell or possess with the intent to sell psilocybin mushrooms.

Ohio: An Ohio court of appeals made a very technical ruling in State v Wohlever (1985, 500 NE2d 318) that under Ohio law, it was necessary that the substance psilocybin be named in the indictment and the state had only named the species of mushroom, which was not specifically listed as illegal in Ohio state law.

Washington: In Washington state in 1984, the case State V Patterson (Wash.App., 679 P.2d 416) also held that Fiske did not apply and live mushrooms could reasonably be considered containers of psilocybin. "The key word 'material' means 'consisten of matter'. This meaning is sufficiently explicit to include substances in their natural state as well as a chemical derivatives or compounds. We conlude that it was the clear legislative intento to inlclude the psilocybin mushroom as a controlled substance."

Richard Boire's excellent book Sacred Mushrooms & The Law explains more about this topic. Richard's current project, the Center for Cognitive Liberty & Ethics should also be consulted for information on the topic of entheogen law.