“Simple” Possession of Narcotics Compared to “Possession with Intent to …”
Almost everyone understands, on one level or another, that the law treats being in possession of a controlled substance or narcotic for the purpose of personal use—“simple possession”—differently than being in possession of that same substance with the intention of selling or otherwise distributing that substance—“possession with intent” or “possession for sale.” But when it comes down to how this distinction actually plays out in real life, things get complicated and confusing rather quickly.
Here are answers to a few commonly asked questions on this topic.
How Does California Law Treat “Simple Possession” Differently from “Possession for Sale”?
Possession of every version of narcotic or other controlled substance is subject to two different sets of penalties in California, as in most states. If the authorities are alleging that you were in possession of the substance solely for your own personal use, i.e., they believe you are an addict or drug abuser, you will likely be charged with a misdemeanor.
As a matter of law, people who are charged with simple possession are treated as addicts or drug abusers, and they are entitled to participate in a diversion program of one form or another (either “DEJ” or “Prop 36,” as they are generally called in Los Angeles County, though there are other informal names for the two major programs).
However, people accused of possession for purpose of sale are charged as felons and are generally ineligible for diversion, at least at the outset of the case.
The Police/Prosecutors Say I Possessed Drugs For Sale Because I Had a Lot of Cash on Me; How is This Possible?
One major point of confusion for people who find themselves facing felony possession for sale or “possession with intent” charges is the nature of the evidence the police or prosecution are pointing to as evidence against them. Sometimes a person is arrested with additional items on his or her person, in addition to the drugs, such as:
- A large amount of cash (of course, “large amount” might mean something different in the eyes of the police), especially if it’s broken into multiple denominations and lots of smaller bills
- A digital scale
- Notes or lists of names or numbers, anything which might look like a ledger, an address book, or a calendar of upcoming meetings; law enforcement will call them “pay/owe” sheets
- Multiple plastic baggies (even just a few), whether empty or containing narcotics
- A weapon
- Multiple cell phones
Possession with Intent
Depending on the situation, the police might point to the fact that someone has even one of these sorts of items on his or her person as evidence that the drugs were possessed with the intent to sell them. This can seem quite ridiculous from the perspective of the accused; oftentimes it is ridiculous. (Some people, regardless of wealth or poverty, simply carry a lot of cash most of the time.)
Remember that narcotics officers are taught a sort of “formula” or “checklist” of different factors to identify as evidence of intent to sell, and they are given an explanation as to why each factor is evidence of “sales activity.” Officers know these explanations by heart; they’ve given them hundreds or thousands of times before. Having cash in small bills is one of those factors.
People often protest that they are being accused of intending to sell drugs based on circumstantial evidence. That is quite often true, and it’s perfectly normal. The police and prosecution rarely—almost never—have “direct” evidence that a person intended to sell drugs in his or her possession. The only possible direct evidence would be a full-fledged confession by the accused, saying “Yes, I planned on selling those drugs.”
The vast majority of the time, law enforcement points to circumstantial evidence. Jurors are specifically told that they are absolutely allowed to find the element of “intent” has been proven entirely by circumstantial evidence.
The Police Arrested Me for Possession for Sale Even Though They Only Have “Hearsay”; How is This Possible?
Another key point of confusion for many people accused of “possession with intent” is the thought that the word of “informants,” or simply out-of-court statements by other people (a disgruntled neighbor or a drug addict who got caught by the police, for example) can’t be relied on to help establish a possession for sales case. People often focus on the idea that someone’s statement accusing him or her of being a drug dealer is “just hearsay” and can’t be enough evidence for a jury to potentially vote to convict.
People sometimes mistakenly believe that a person can only be accused of being a drug dealer if there is evidence that a specific transaction was either in process, or had just happened—a “hand to hand” sale or a “controlled buy” with an undercover officer, for instance. This is simply not the case.
Hearsay is a legal term that has a specific meaning, and it’s usually not what people might expect. If you or your loved one is accused of being in possession for sale, or possession with intent, then you need to consult with an experienced, qualified attorney. The only way to help understand what you or your loved one is facing in terms of evidence is to have a skilled lawyer analyze the situation.
Lawyer for Defending Possession Charges
A skilled criminal defense attorney who handles narcotics cases regularly will be familiar with all of the ways to illustrate that the so-called “indicia of sales intent” so often relied on by law enforcement are not relevant or applicable in your situation.
A good attorney will know how to deconstruct the false “drug dealer” narrative being put forth by law enforcement about you or your loved one and help get the best possible result for your case.
Our experienced lawyers are qualified and aggressive on your case. Call our office today.