Possession With Intent to Sell or Deliver
Can the police read your mind? Is Tom Cruise's Minority Report movie becoming a reality? Lets hope not. But, possession of a controlled substance with intent to deliver is one of those crimes that relies heavily upon what an officer interprets as "intent". As you might expect, possession with intent to sell or deliver is considerably more serious than simple possession. The charge falls somewhere in between a simple possession and a drug trafficking charge.
Much of the evidence as to whether or not a person intended to sell or deliver comes from police officer testimony regarding the circumstances surrounding the possession. In most cases, the police never observe the person attempting to sell or deliver the drugs, the inference comes from the amount of drugs and the packaging.How Much Weight Constitutes an Intent to Sell?
Where the quantity of drugs is inconsistent with personal use, that amount may be circumstantial evidence of a persons intent to sell. I know what you're thinking, is there a magic number here, where 18 grams of weed is "with intent to sell," but 14 grams is not? Or, is 3 grams of cocaine a "simple possession" but 13 grams a possession "with intent"? Unfortunately, the law is never that simple. There is no bright line test, but there are lines drawn by judges. For a more detailed look at quantities that do not qualify as "with intent to distribute", check out my article "Intent to Sell vs. Personal Use: How Much of a Drug is Too Much?".
Here's a few cases where possession with intent convictions were overturned:
Valentin v. State, 974 So.2d 629 (Fla. 4th DCA 2008) (evidence of 8.3 grams of cocaine in seventeen ziplock baggies worth $340 insufficient to prove possession with intent to sell);
C.L.L. v. State, 566 So.2d 878 (Fla. 3d DCA 1990) (evidence of ten pieces of cocaine in plastic baggies was insufficient to show intent to sell);
D.R.C. v. State, 670 So.2d 1183 (Fla. 5th DCA 1996) (evidence that officers observed the accused discard twenty-three separate, unwrapped rocks of cocaine was insufficient to prove possession with intent to sell);
Nelson v. State, 707 So.2d 405, 406 (Fla. 5th DCA 1998) (six packages which each contained a piece of cocaine did not establish intent to sell);
Williams v. State, 569 So.2d 1376, 1377 (Fla. 2d DCA 1990) (evidence consisting of ten pieces of cocaine, marijuana rolling paper, $72, and a weapon was not sufficient to prove intent to sell).
In the case of Harris v. State, 72 So.3d 804 (Fla. 4th DCA 2011), Harris was arrested with 50 crack cocaine rocks, and charge with Possession of Cocaine with intent to sell or deliver. Harris was convicted, in part due to the testimony of officers who claimed that most 'crack-heads' only have 2 or 3 rocks at a time, and Harris didn't have a crack pipe to smoke the 50 rocks. Of course, the court struck down the charge, reducing it to simple possession of cocaine because there was never any evidence that Harris was attempting to sell or deliver the cocaine. For more info, read my blog "Intent to Sell Drugs vs. Use Drugs".What Type of Packaging Constitutes an Intent to Sell?
Sometimes, its not the weight of the drug, nor the amount of cash a citizen has on hand. Sometimes, it's the packaging. Possession of Marijuana with intent to sell can be charged merely based upon the number of baggies (may not get a conviction, of course), because marijuana tends to be more packaged than crack or oxycodone, for example. But, how many baggies of weed must you be caught with in order for the court to uphold a claim that you intended to sell those baggies?
In Alleyne v. State, the defendant was caught with 18 baggies of marijuana. 42 So.3d 948 (Fla. 4th DCA 2010). He was, eventually, convicted of possession with intent to sell or deliver. As you might expect, the officers in this case told the court that the 18 baggies of marijuana were "packaged" in a way consistent with drug dealing. Fortunately, the appeals court threw out Alleyne's conviction, finding that the police "never saw Alleyne engaged in selling marijuana and had no personal knowledge that he had ever done so." id. at 949. Thus, it appears that 18 baggies is not enough to prove intent to sell. That being said, this case may not have been thrown out if each baggie contained a pound of weed. For a more in depth discussion of this case (and others like it), check out my article "Possessing 18 Baggies of Weed Doesn't Equal an Intent to Sell Charge".
Also, we defense attorneys don't want the prosecutor presenting misleading testimony concerning "what other drug dealers do"--as some sort of evidence that our client must, too, be intending to deal drugs in a similar fashion. The prosecutors will parade before the jury so-called drug dealing experts, who will spin tales of past drug busts, and explain how other dealers package, store, and distribute their product. This sort of testimony should never be allowed, and you'll find a discussion as to why in my article "Possession with Intent to Smoke (2)".
Remember that the entire circumstances of the possession charge factor into a courts decision regarding proof of with intent to sell or deliver, including testimony from experts in the field of drug transactions. Where there are large amounts of cash rolled up in certain denominations, expect those facts to weigh in for an intent to deliver charge. Where drug paraphernalia is found along with the drugs, that may be evidence that there was no intent to sell or deliver, but rather only consume. Its always difficult for the State to prove the difference between someone possessing drugs to be sold later, versus a buyer who had recently purchased the drugs for personal use.