When controlled substances are discovered, the police and the county attorneys have a decision to make: Should the crime be charged as “possession” or “intent to distribute?” Absent an admission from the suspect that he is a drug dealer, what do the charging authorities look at before they make their decision? And more importantly, what will a Court use to determine whether this crime has occurred?
In general, the following will be taken into strong consideration:
· Amount of drugs
· Way drugs are packaged
· Quality of drugs (e.g., stems and seeds usually removed by users but included by sellers to increase weight)
· Amount of cash (particularly if suspect is also unemployed)
· Paraphernalia, scales, notebook of sales/contacts, etc
· Whether there are drugs in suspect’s system (if no, points to seller not user)
· Location of arrest (high-crime/area known for drug sales)
Testimony from a police officer of the way the drugs were packaged fits the mode of operation of someone who sells drugs, or that the actions of the defendant conform to that of a drug dealer, appears to take these cases over the edge into guilty territory.
Intent to deliver can be found when joint funds were used to buy the drugs and they were later shared, particularly if the defendant can be seen as a “link in the chain of distribution.” Drugs also don’t need to actually be found on the person, if they can be held in constructive possession of them.
However, there are a few cases when the defendant has been successful in arguing insufficient evidence of intent to deliver. In State v. Thomas (Iowa, 1997), the defendant was one of 5 people arrested at an apartment where crack was found hidden outside the kitchen window. The state produced no evidence the defendant lived in the apartment (he was from California), he didn’t have drugs or paraphernalia on him and only $5.30 in cash; the court found the evidence he constructively possessed the drugs outside the window fell considerably short of the mark. In Fullenwider v State (Iowa, 2004), the defendant was found in bed with the occupant of the apartment they were in, in which the police also found cocaine and a scale. The court found no evidence the defendant lived in or was tied in any way to the apartment, and there were no personal items of his there (other than clothes by his side of the bed).
Certainly it is more than just the amount of drugs that a court will look at in examining the sufficiency of evidence on a distribution charge. If there is a combination of drugs, along with one or two of the other factors (perhaps a scale, or if the drugs appear packaged for selling), along with officer testimony that the defendant’s actions/possessions are in line with that of a drug dealer.