Intent to distribute – How do police & prosecutors prove it?

In California, “possession with intent to distribute” is a much more serious crime than simple possession for personal use. But it can also be a more difficult crime to prosecute, because the state must prove (beyond a reasonable doubt) not just that you had the drugs but that you intended to sell or traffic them.

Occasionally, law enforcement will have direct evidence, such as

• your statement that you have drugs to sell, or
• if you sold to an undercover police officer.

Most cases rely on circumstantial evidence, however, such as

• packaging of the drugs in multiple baggies or bundles,
• scales, or
• large quantities of drugs.

How do prosecutors prove possession with intent to distribute?

In order to secure a conviction for the offense, prosecutors and law enforcement pursuing a charge of drug possession with intent to sell have to prove that intent beyond a reasonable doubt. They can do this with either:

• direct evidence, or
• circumstantial evidence.

Generally, that evidence does not require proof that the illegal drugs were for sale. It is enough to show that you intended to distribute or deliver them, even when it was not in exchange for anything of value.¹ This is why the drug offense is known under some states’ criminal law as:

• possession with intent to deliver (PWID),
• possession with intent to distribute, or
• drug possession with intent to sell.

Direct evidence

Direct evidence of your intent to sell a controlled substance shows your intent to do so without the need for inference. It shows you acting in furtherance of your intent to sell the controlled substance.

Examples include:

• a police officer witnessing you sell drugs,
• you selling drugs to an undercover agent, or
• your text messages or voicemails admitting that you have drugs and intend to sell them.

Relatively few cases have direct evidence of an intent to sell.

Circumstantial evidence

Most criminal charges rely on circumstantial evidence of your intent to sell a controlled substance. Circumstantial evidence is a sign that you intended to sell the drugs, but requires an inference to do so.

Examples of circumstantial evidence of an intent to sell are:

• you were arrested with a large quantity of drugs – far more than you could use, personally,
• there was packaging equipment, such as boxes, baggies, scales, and packing tape, that were found with the drugs,
• you were arrested in an area known to be used by drug dealers, or
• you had large amounts of cash or a weapon.

None of these pieces of evidence, by itself, necessarily proves your intent. However, prosecutors will argue that the “totality of the circumstances” paints the picture of someone who intended to sell the drugs.

Just because law enforcement only has circumstantial evidence that you intended to sell the drugs does not mean that their case is weak. Most convictions for these drug crimes rely solely on circumstantial evidence.

What are some good defenses to assert in court?

You can raise certain legal defenses to challenge or explain any evidence of your intent to sell a controlled substance. Some common ones are:

• the drugs were found during an illegal search that lacked probable cause,
• the drugs were found during during a traffic stop where police used “drug-sniffing dogs” that lacked adequate training or did not indicate the police that they detected drugs,
• the drugs did not belong to you,
• the drugs were for your personal use,
• you had a current and valid prescription for the drugs,
• the police entrapped you,
• you were unaware that you were in possession of a controlled substance, or
• you were not in possession of the drugs at all.

Some of these defenses are complete defenses – if successful, they lead to an acquittal. Others are incomplete, and will only reduce the severity of the drug charges.

For example, arguing that you did not intend to sell the drugs because they were for your personal use is an incomplete defense when the controlled substance at issue is illegal to possess, like methamphetamine, LSD, or cocaine. In this case, a successful defense would doom the charge for possession with intent to sell, but would admit to the lesser offense of simple possession of an illegal substance. While it still leads to a conviction, the reduction is significant. It is always preferable to be charged as a drug user or possessor than a drug distributor or dealer.

The simple possession of drugs is often a misdemeanor, which carries a prison sentence of under a year. Furthermore, if it was your first offense, you may be eligible for a drug diversion program. These programs focus on treatment, rather than jail time. If the conviction was for a subsequent offense, diversion is generally not an option.

Note that “possession” does not just mean physically holding or carrying the drugs (called “actual possession”). Possession can also be:

• “constructive possession,” which is storing the drug in a place you have control over such as your home or car or
• “joint possession,” which is sharing possession with at least one other person.

Also note that in cases where there is no possession – but police know that you are expecting a drug shipment soon – prosecutors may try to bring charges of attempt to sell drugs and/or conspiracy to sell drugs.

What is a controlled substance?

A controlled substance is a drug or other chemical compound that is regulated by law. Both state and federal laws regulate these substances, though many state laws are based on the U.S. Controlled Substances Act (CSA).

Controlled substances are divided into five schedules.

• Schedule I drugs like heroin have no accepted medical utility and therefore carry the harshest penalties.
• Schedule II drugs like cocaine have some medical use but are largely illegal and also carry harsh penalties.
• Schedule III drugs include many powerful painkillers like Vicodin, and using them without a prescription is a serious crime.
• Schedule IV drugs include many anti-depressants and sleep aids like Ambien which are also illegal to have without a prescription.
• Schedule V drugs like Robitussin AC have a high degree of medical utility and are the least dangerous controlled substances.

What is the law in California?

In California, possession of a drug with the intent to sell or distribute it is prohibited by Health and Safety Code 11351 HS.

To prove this felony offense, prosecutors have to show the following elements of the crime:

1. you unlawfully possessed a usable amount of a controlled substance,
2. you knew of its presence,
3. you knew that the substance was a controlled substance, and
4. when you possessed the controlled substance, you intended to sell it, or to have someone else sell it, for money, services, or anything else of value.²

Note that you did not need to intend to sell the drugs yourself. Prosecutors only have to show that you intended for someone to sell the drugs.³

Also note that even though recreational cannabis (a schedule I drug) is legal in California, it is still illegal to sell it unless you have a licensed dispensary.

What is the federal law for intent to distribute?

Similar to state laws, federal law makes it illegal to possess narcotics with the intent to distribute them. In general, the penalties are as follows:

Drug Type/Quantity	Prison Term	Fines
Schedule I and II Narcotics	Up to life	Up to $10 million (individual) or $50 million (organization)
Schedule I and II Non-Narcotics	Up to 20 years	Up to $1 million (individual) or $5 million (organization)
Schedule III Substances	Up to 10 years	Up to $500,000 (individual) or $2.5 million (organization)
Schedule IV Substances	Up to 5 years	Up to $250,000 (individual) or $1 million (organization)
Schedule V Substances	Up to 1 year	Up to $100,000 (individual) or $250,000 (organization)

These penalties can change depending on your criminal history and the presence of aggravating factors, such as whether someone sustained serious bodily injury or if guns or minors were involved.⁴

---