Virginia law prohibits both the illegal possession of controlled substances and possession with the intent to distribute controlled substances. Both offenses are addressed under Virginia Code Section 18.2-248. Conviction of possession with intent to distribute requires that the Commonwealth prove that an individual “intentionally and consciously possessed the controlled substance, either actually or constructively, with knowledge of its nature and character, together with the intent to distribute it.”
To prove intent to distribute, the Commonwealth has to introduce sufficient evidence showing that the substances at issue were intended for distribution and not just for the individual’s own personal use. Barring an admission by the defendant, how does the Commonwealth prove an individual’s intent with regard to the substances he or she possesses? Police officers do not necessarily witness a transaction—sometimes an individual’s interaction with law enforcement occurs long before or long after the alleged sale of illegal drugs occurred. Thus the intent element of possession with the intent to distribute is often proven by circumstantial evidence.
There are several factors the Commonwealth may use to argue that an individual’s possession of an illegal substance is for the purpose of distribution and not merely for personal use:
How much was found? The quantity of a substance is a factor which can indicate the purpose for which it is being possessed. Although quantity alone may not be determinative, it is a highly relevant factor. Was it a large quantity greater than that which is ordinarily possessed for personal use? Though the amount considered to be for personal use can vary according to the type of substance and the level of use by a certain individual, the Commonwealth may point to larger amounts of a substance as indicative of the intent to distribute.
How was it packaged? As one might expect, the kind of circumstantial evidence used to prove intent to distribute varies based on the specific kind of drug at issue, because different drugs are packaged and sold in distinct ways. Some substances are bagged by individual dosage, others by larger amounts. Specific to the type of drug, the manner in which it was packaged could be considered to be a “distributable form” of packaging. For instance, where the kind of substance at issue is illegally distributed prescription pills, the absence of pharmaceutical packaging like pharmacy pill bottles could indicate packaging for illegal distribution. The form of packaging can also be used to rebut a claim of personal use. While possession of a small quantity might suggest personal use, possession of a small quantity packaged in a particular manner maybe the kind of circumstance sufficient to establish the intent to distribute.
What else was found? What was not found? However, even if the substance is packaged in an arguably “distributable form,” that does not prohibit the inference that it could have been purchased that way, and is still being possessed for personal use and not being held for distribution. Other items that were seized with the substance can also be used to show personal use or to argue the intent to distribute. For instance, the presence of paraphernalia used for administering the substance—such as needles or a bong—may show personal use, while the presence of scales or empty receptacles for packaging may show the intent to distribute.
Factors consistently referred to by courts as indicative of the intent to distribute include equipment related to drug distribution, the presence of firearms and ammunition, and large amounts and certain denominations of cash. While the presence of a factor can add to the persuasiveness of an argument, the absence of a factor can also be argued. For instance, the absence of a claim by the defendant of personal use or the absence of items suggestive or personal use can be used as evidence of the intent to distribute.
So how do all the factors add up in a court’s analysis? As one example, in Emerson v. Commonwealth, 43 Va. App. 263 (2004),the court found sufficient evidence to support the defendant’s conviction for possession with the intent to distribute cocaine because he was found in possession of 4.01 grams of powder cocaine packaged in seven individual plastic bag corners, a large amount of cash, an electronic scale, a large quantity of ammunition, and no evidence to suggest that he himself was a cocaine user.
Now, compare those facts to the following hypothetical. Say an individual was found in possession of only a few dollars and 16 grams of marijuana in one single plastic bag. There were no firearms or ammunition, nor any tools of measurement (such as an electronic scale) or additional empty plastic bags found on his person. Assume the man is charged with possession with intent to distribute. A defense lawyer might rebut the Commonwealth’s argument for possession with intent to distribute by stating that this individual, like many Costco shoppers, prefers to save money by buying in bulk and both what was found on him and what was not found indicate the marijuana was for his own personal consumption.
Ultimately, proving the intent element of possession with intent to distribute involves weighing a variety of factors that may be present or may not present and can vary drastically depending on the facts of the case.