In many drug cases charging Possession of Drugs with the Intent to Distribute, the State relies upon circumstantial evidence to establish that the drugs were intended for distribution purposes. Without these circumstantial proofs, the State often cannot establish the intent to distribute. Without the intent to distribute, the possession of the drugs can only be for use, which eliminates the mandatory sentencing and parole ineligibility of the Intent to Distribute statute.
Examples of the types of 'circumstantial' evidence the State will rely on, each of which requires the State to infer the reason for the conduct as being 'drug trafficking related', includes:
- The surveillance of several people in the vicinity of 'suspected transactions'.
- The observation of a 'buyer' exchanging something with a 'seller'.
- The seizure of money from one or more of the persons during the arrest.
As an alternative to allowing the State to infer that this type of observed conduct is "suspicious" or "drug-trafficking" related, the experienced criminal defense lawyers at Bailey & Orozco challenge the State as to why the officers did not actually investigate the conduct, by using an available investigative action to actually corroborate what the observed conduct meant. For example:
- When there is no danger of the surveillance being detected, the officer could continue to observe the 'suspected transactions' long enough to corroborate the pattern of activity. If drug trafficking were actually occurring, this could establish who was holding the 'stash' of drugs; who was holding the 'bank'; and, whether someone is not actually dealing drugs, but just dumb enough to stand and talk to someone who was dealing drugs.
- When back-up officers are available, they could conduct an off-site (out of the seller's vicinity) investigative stop of the 'buyer' to question the buyer regarding the observed 'suspected transactions'. This investigative action would result in physical proof of drug-dealing (the seized drugs from the buyer) and perhaps a statement from the 'buyer' that they bought drugs from the 'seller'.
- Instead of the seized monies merely being recorded as a total amount of a particular denomination, the officer could have explained what the type of CDS at issue normally sells for in this area, for example, $10.00 per vial. This could then be combined with a recitation of the order in which the seized monies were found, (a $10.00 bill, a $5.00 bill followed by 5 $1.00 bills, etc.), to establish a basis for the officer to conclude that the seized monies were in sequences of the amount of money for which each vial typically sells for, and that therefore the seized monies were drug proceeds.
Circumstantial evidence of one or two elements can be compelling to a jury when coupled with direct evidence of the remaining facts. However, an over-reliance on circumstantial evidence and the drawing of inferences can act to weaken the State's case. If you are confronted with these types of proof, talk to us about how we would challenge them on your behalf.
