There are plenty of bogus charges out there, and one of my favorites is Possession of a controlled substance with the intent to sell or deliver. In my twenty (plus) years of defending criminal cases in Orlando, I’ve seen plenty of cops, judges, and prosecutors that truly do not understand the law on intent charges. Basically, a possession with intent to sell charge is really just a simple possession charge upgraded due to the quantity of drugs, the packaging of the drugs, or the money found on the citizen. The charge is always accompanied by the arresting officer’s “expert” opinion that weight, packaging, and cash is consistent with drug dealing. So, let’s take a look at a real life example, like we always do.
In Alleyne v. State, 42 So.3d 948 (Fla. 4th DCA 2010), the defendant was charged with possession of marijuana with intent to sell within 1,000 feet of a school. Alleyne ran when police rolled up to a convenience store, and as he ran a brown bag flew out of his hand. Inside the bag was 18 individual plastic Ziploc baggies containing marijuana, a rolled up $20 bill, with another $36 was found in Alleyne’s pocket. The total weight of 18 baggies was less than 20 grams (a misdemeanor, fyi).
At trial, an officer testified that the “amount that Mr. Alleyne had on his person was not for personal use, it was for drug dealing.” Id. The officer was convinced these 18 baggies of marijuana could not have been for personal use, “[n]ot the way it was packaged, not the way he was standing, and not the way the incident took place.” Id.at 949. Now, for those of you who have not participated in many drug trials, let me tell you, testimony from a cop that the drugs were ‘packaged consistent with drug dealing‘ never makes much sense, because there’s always two sides to a transaction. My kitchen is full of stuff that is packaged for sale. My unopened box of Fruit Loops is packaged for sale. Half of my kitchen pantry is packaged for sale, but that doesn’t mean I’m running a grocery store. Why can’t somebody buy 20 small baggies of weed? You can still buy a case of beer these days, right? This so-called expert opinion regarding drug packaging is really just an excuse to enhance a possession charge into a three times more serious possession with intent to sell or deliver case (a typical possession charge is a third degree felony, punishable by up to 5 years in prison, by adding the ‘intent to sell’ language, you’ve increased the max prison to 15 years).