Possession with Intent to Smoke (2)

IMG_0476-e1456765765191-300x225What I’m about to say may come as a shock to folks unfamiliar with the workings of our government.

Our government officials exaggerate.

Yes, I’m as tired of such cliches as you are.   That being said, please don’t stop reading just because we’re starting out with a cliche.  Behind every cliche there may be a nugget of truth lurking.

Today, our Circle of Distrust involves law enforcement, and their habit of exaggerating arrest reports.  Why should we care if cops lie a little?  Well, an exaggerated arrest report leads to exaggerated charges, and in the end, harsher sentences for no good reason.   Imagine a horror movie with the Butterfly Effect, where small acts snowball as the movie progresses and there’s blood everywhere by the ending credits.  Trust me, these exaggerations are a major source of injustice (if injustice doesn’t bother you, please note that these exaggerations lead to wasted tax payer dollars, maybe your pocketbook should be concerned over this).

Every crime has an enhancement lurking (I promised my web people I wouldn’t use lurking more than three times per blog, I’ve reached my limit), and cops exploit these nuances.  Our real life example for today involves a drug charge–the low hanging fruit of exaggerated claims.   Often, a drug “possession” charge is transformed into a rather serious drug “dealing” charge via the claim that a citizen had “an intent to sell or deliver”.  If you’re an addict, you’ll probably be caught with enough of a stash for the cops to upgrade it to an “intent to sell or deliver” charge (the exception to this rule tends to be heroin addicts, who cannot wait to use up their stash).  Same goes for rich folks, they carry enough cash and drugs to see similar treatment.

Here’s the play by play on our real-life case:  Mr. Thomas was stopped for failing to use his turn signal.  Thomas v. State, 2017 Fla. App. LEXIS 51 (Fla. 4th DCA 2017)  He ended up with a 10 year prison sentence, convicted of possession of cocaine with the intent to sell or deliver.

Police found two containers of crack cocaine, totaling 3.5 grams.    Basically, Mr. Thomas had about $200 worth of cocaine.  He also had $1,086 cash on his person, denominated in twenty-dollar bills.  I’ve already spoiled this by telling you that Thomas was given 10 years prison on this possession with intent to sell charge–but the question remains, was this a legal sentence?  After all, how does $200 in drugs get you 10 years?  Well, this slight of hand began with the arresting officer exaggerating this simple possession case into something it’s not.  But let’s not go too hard on the cop here, he had plenty of accomplices to get Thomas 10 years in prison.

I know what you’re thinking: there must be more to this, right?  $200 in drugs = 10 years prison?

In order to prove “intent to sell or deliver,” there must be some sort of evidence that Thomas engaged in “criminal conduct or behavior consistent with drug dealing.” id. at 2.   For example, if the cops saw Thomas walking up to random cars and exchanging something with the drivers, that would get them closer to “intent to sell or deliver”.   In other words, an ‘intent to sell or deliver‘ charge translates into “we can’t catch you dealing, but we’ve seen you do it”.

So, even though Thomas wasn’t seen acting out “criminal conduct or behavior,” can the prosecution overcome this hurdle by presenting a drug dealing “expert?”  After all, if you don’t have the evidence to convict, what about having some expert transform the crappy evidence you do have into something legal?

A wise judge once told a prosecutor: “Explaining something isn’t the same thing as proving it”.

The prosecutor couldn’t prove Thomas was behaving like a drug dealer, but they tried to explain his intent by calling “a St. Lucie County Sheriff’s deputy as its expert witness.  The deputy testified that he was certified in narcotics detection and had extensive experience in undercover drug transactions.  He said that after reviewing the state’s evidence, he concluded that [Thomas’] possession of the cocaine was with the intent to sell.”  id. at 3.

A first year philosophy student could tear up this sort of logic, and I’m surprised the judge and prosecutor bit on it.  Basically, this expert thinks that because he’s seen other drug dealers behave in a certain way–Thomas must have the intent to behave in that way as well.   Such logic was shot down in Austin v. State,  where the court held that the admission of “testimony about the general behavior of certain kinds of offenders is inadmissible as substantive proof of a defendant’s guilt. Every defendant has the right to be tried on the evidence, not on the general characteristics or conduct of certain types of criminals,” and this testimony “invites the jury to convict the defendant by association, rather than on the evidence.”  44 So.3d 1260 (Fla. 1st DCA 2010).

I’m going to rant for one second (3 paragraphs, actually) about this 10 year prison sentence.  Where are your tax payer dollars goiong?  This case should give you some idea.  Tax payers are billed $31,286 per inmate, per year, minimum.  Thomas received ten years in prison–for $200 in  drugs.

There were several (apparently) intelligent folks who conspired to spend $312,860 in tax dollars over ten years, all over $200 worth of cocaine: (1) the arresting officer who thought $200 worth of crack constituted an “intent to sell”, (2) the expert witness certified in narcotics detection, (3) the prosecutor that never bothered to read the case law concerning “intent to sell”, and (4) the judge who gave Thomas 10 years for the $200 in crack cocaine.

How much do teachers get paid?  For every inmate that isn’t sent to prison, maybe we could pay our teachers a bit more?

The good news is, the appellate court overturned Thomas’ conviction, holding that  “the evidence was not inconsistent with the theory that appellant possessed the cocaine for personal use. The aggregate weight of the cocaine, 3.5 grams, was relatively small, and the cocaine was not individually packaged. . .there were no other suspicious circumstances to suggest [Thomas’] intent to sell the cocaine he possessed.  Before the arresting officer stopped appellant for the traffic violation, he did not observe appellant conducting a sale of cocaine or engaging in any conduct consistent with illegal drug sales.” id.

Not to beat a dead horse here (too late), but I’m amazed that this case went as far as it did.   Seems like this trial was conducted in Jonestown with everyone ready to chug the Kool-Aid (another tired cliche, my last of this article, I promise).  There’s no excuse here for the cops, the prosecutor, and the judge not knowing the law.  The appellate court was nicer than I would have been about this blatant lack of knowledge.  The appellate court gently reminded these folks of all the previous times they overturned an “intent to sell or deliver” conviction:

Jackson v. State, 818 So. 2d 539, 541 (Fla. 2d DCA 2002) (finding insufficient evidence of intent to sell where defendant possessed $400 and six baggies of cocaine, weighing a total of five grams).   It has been the law since 2002 that six baggies and 5 grams of cocaine DOES NOT CONSTITUTE possession with intent.  Thomas is a 2017 case.

Valentin v. State, 974 So. 2d 629, 631 (Fla. 4th DCA 2008) (17 bags containing a total of 8.3 grams of cocaine were not indicative of intent to sell where there was testimony that the possession could be for sale but may also be for personal use)  Again, why did the Thomas  folks think 2 containers with 3.5 grams constituted “intent to sell”, when this case from 2008 is telling the whole world you need more than 17 baggies and  8.3 grams of cocaine to get intent to sell?  Is the math too difficult here?
Harris v. State, 72 So. 3d at 809 (possession of 50 cocaine rocks not individually packaged was insufficient to establish the intent to sell element).
I could go on, but you get the point.  What should have been obvious to everyone involved is that Mr. Thomas possessed this crack with the intent to smoke.  Every crack possession case is “with intent to smoke.”  It takes a lot more crack and surveillance to convert “intent to smoke” into “intent to deliver.”