In Press, The Champion (2010)

Possession for Sale: When is Enough Enough?

Stephen M. Pittel, Ph.D

SMP Associates

2222 Derby Street 

Berkeley, CA 94705 

The prosecution of cases for possession of drugs for sale is frequently based on the weight of the substances found in the subject’s possession.[1]  Because no objective standards exist for determining how much of any controlled substance constitutes evidence of possession for sale, convictions in such cases are often based on the opinions of arresting officers. In some cases, more highly trained officers who are certified as Drug Recognition Experts (DREs) are used by prosecutors to bolster the testimony of less experienced arresting officers.  This paper discusses the typical evidence used in these cases and techniques that can be used to rebut such evidence.

After committing a traffic violation, a young man was arrested and charged with possession for sale of methamphetamine He was found to have a total of 6.4 grams of the drug in three separate plastic stamp bags.  One of the bags, containing 3.7 grams, was seen by the arresting officer on the floor near the passenger’s seat, the other bags, containing 1.6 grams and 1.1 grams, respectively were found in his shirt pocket.  A dollar bill rolled up and secured with Scotch tape to serve as a straw was also found in his shirt pocket.  The suspect admitted to using methamphetamine, and claimed that he had bought two ‘eight-balls’ (one fourth of an ounce)of the drug from a street dealer the previous day.  He said that he received three containers of the drug, a larger bag that he was told contained 3.5 grams (an ‘eight-ball) and two smaller bags, each of which he believed contained a teenth (1.75 grams).  He went on to say that he was a habitual user and had used and had used most of the contents of two of the bags, using the straw he had made to ingest the drug.

At trial, the arresting officer told the jury that methamphetamine users rarely buy more than they need each day and that the seven grams purchased by this defendant was enough to kill a dozen or more adults.  No expert witness was called to rebut the officer’s testimony, to explain the rapid build-up of tolerance that requires increasingly greater doses of methamphetamine as tolerance develops or to challenge the myth that of the impoverished user who goes out each day to buy what he needs to support his habit.

Case #2

Another case involved a suspect who was arrested while he was walking in the middle of a street and rambling incoherently.  The police report indicated that he showed all of the signs of the acute confusional stage of PCP (phencyclidine) intoxication including gait ataxia and both horizontal and vertical nystagmus. He was taken to a local hospital where he was treated with anti-psychotic medication. He was charged with possession for sale of PCP on the basis of five PCP joints found in his possession.  The arresting officer testified that four or five people could be intoxicated with a single PCP joint, and that he had never encountered a PCP user who purchased more than a single joint per day. 

What the testifying officers failed to mention is that users of PCP who can afford to – particularly in California where PCP is most often sold in liquid form --  frequently buy a sufficient amount of the drug to spread on a number of parsley or marijuana cigarettes that may last them for a week or more, that some users of PCP consume four or more PCP laden joints per day, and that the  Department of Justice Toxicology laboratories and the vast majority of County or local law enforcement laboratories report only the qualitative findings that confirm the illicit nature of the drug, but they do no report on the purity of the drug.  Thus, while it may be true that a single PCP joint may be potent enough to intoxicate four or five people, it is also possible that a single user may need to smoke four or five joints to get the desired effect.  When the quality of the PCP available is high, it may be true that some users buy only enough to use on a day; when the quality of the drug is poor they may buy considerable more to satisfy their daily pattern of use or to use over a number of days.  But there is no logical basis to justify the assumption that a user who possesses five PCP joints is intending to engage in sales[2]

Case #3

In another case a defendant  was charged with possession for sale of three rocks of crack cocaine in a single plastic bag. The arresting officer alleged that the rocks were larger than street samples he had encountered in the past and the suspect was not under the influence of cocaine at the time of his arrest. 

The testimony officered to support the prosecution’s belief that the defendant possessed the rock cocaine with the intent to sell suffers from two fatal fallacies.  First, rock cocaine is made by dissolving cocaine hydrochloride and baking soda in water, and boiling off the water to leave porous chunks or rocks of crack cocaine.  (The air bubbles left in the rock when the two substances combine produce a cracking sound when smoked – resulting in its name).  High-quality dealers typically use a one-to-one ratio of cocaine hydrochloride and baking soda, while others try to maximize their profits by increasing the ratio of baking soda  to cocaine by as much as three or four to one.  This process results in the production of a larger rock that contains less cocaine[3].  The assumption that larger rocks are indicative of intent to sell has no merit – especially when the purity of the sample is either not analyzed or reported.

Second, the fact that the user was not intoxicated at the time of his arrest also provides no evidence of intent to sell.  The user may have just purchased the drug,  planned to use it at a later occasion, or may not have want to carry the paraphernalia for smoking with him to minimize his risks or for a variety of other reasons.

In none of these cases were the defendants found with any precision scales used to weigh illicit drugs, with any of the substances typically used to cut or dilute street drugs, with any apparatus used in the manufacture or processing of the drugs, or with any of the materials typically used to package drugs for sales.  Nor were they found to possess any other possible indicia of sales such as weapons, large amounts or cash, records of amounts paid or owed to others involved in their alleged drug transactions, or even cell phones or beepers that illicit dealers of drugs might be expected to use in conducting the sale of drugs.  In these and what may well be the majority of such cases, the possession for sale charges was brought primarily on the quantity or weight of the drug possessed.

Expert Police Witnesses

The following are examples of testimony offered by police witnesses to support their opinion that suspects possess drugs with the intent to sell, as opposed to the lesser charge of mere possession for personal use.

1.  Police officers are trained to differentiate possession for personal use from possession for sale.

The California Commission on Peace Officer Standards and Training (POST) training manual on controlled substances (CALDOJ, 2002)[4] provides information that will allow officers to identify the “crime elements, classification and appropriate code sections . . . pertaining to  ‘possession of a controlled substance for sale’.  The following text indicates that “specific intent to sell is corroborated by:

·  observation of suspect’s movements, behavior, characteristics, associates, and high volume of vehicle and pedestrian traffic at a specified location,

·  evidence such as packaging, scales, calculator, notebook, mathematical notations, cutting agents, denominations and location of U.S. currency, etc., and

·  fortified location (i.e. security bars on windows).

The only additional information provided in this manual defines the necessary “. . . crime elements to arrest a suspect for the crime of possession of a controlled substance for sale” include:

·   knowledge

·   control or constructive control

·   specific intent, and

·   a usable quantity for sale

Neither this manual, nor any of the other State or military training manuals I have reviewed provides any information on the weight or quantity of any controlled substance that should be used as a criterion to determine “possession for sale”.  In the absence of any objective standard, the arresting officer must rely solely on his or her subjective judgment to determine what constitutes “a usable quantity for sale.” [5]

2.   The suspect possessed a weight or quantity of a drug that the officer believed exceeds the amount needed for personal use

Unless a very significant amount of a controlled substance is found, it is impossible to determine with any degree of certainly if drugs found in the possession of a user are intended for personal use or for sales without detailed knowledge of the user's pattern of use.  For example a user with the necessary resources could easily purchase a kilo of marijuana for personal use because the cost of the drug in ounce or greater quantities significantly less that purchases of that same drug in smaller quantities.  Users of methamphetamine, heroin and a variety of other drugs that produce tolerance and/or physical dependence may consume far more than the ‘typical’ casual or occasional user of these drugs.  Whereas approximately 200 milligrams of methamphetamine, for example, may be a fatal dose for a naïve or non-tolerant user, a habitual high-dose intravenous user of methamphetamine may consume two to five grams (2000 to 5000 milligrams) per day (e.g., Grinspoon & Hedbloom, 1975)[6].  Thus, the possession of 10 grams of methamphetamine by an occasional user, for example, may be indicative of the intent to sell, whereas the same quantity may be a mere fraction of the drug needed to satisfy the daily needs of a habitual high-dose user for a few days or less.

Just as a cigarette smoker’s use may range from a few cigarettes to three or more packs a day, patterns of illicit drug consumption are highly varied.  Jurors who are unfamiliar with the varied patterns of illicit drug use may nonetheless be convinced by the testimony of police officers whose claim that users of an illicit drug do not typically use more than a modest amount of the drug on a daily basis. 

While it may be possible to infer that a subject has the intent to sell because they possess more of a drug that they are likely to use in a reasonable period of time by obtaining information regarding their particular pattern of use, police officers do not typically obtain this type of information.  Nor do they follow the routine procedures that are employed in other types of criminal investigation to corroborate or refute the information that they might obtain from interviewing subjects arrested for possession for sale. It is also worth mentioning that users who can afford to buy in larger quantities often do so not only to save money, but also to minimize the risks of arrest and other hazards associated with street drug transactions.

3.  The typical user only buys enough for a single dose or no more than can be used in a single day.

While is it probably true that many users of illicit drugs purchase only what they can afford on any given occasion, considerable discounts are available to users who can afford to purchase in larger quantities. The street price of a gram of cocaine or methamphetamine, for example, is approximately $75 to $100 (depending, in part on its purity and where it is purchased[7].  The same dealer will typically sell a sixteenth of an ounce (a ‘teenth’ or1.75 grams) for approximately $120, and an eighth of an ounce (an ‘eight-ball’ or 3.5 grams) for approximately $200.  Typical prices for an ounce (28 grams) are approximately $500. Even the casual or occasional user of these drugs may be motivated to purchase in larger quantities than they expect to use in a few days or even weeks, by the significant discounts available to them by doing so. 

To testify that a user who possesses a significant quantity of drugs has the intent to sell solely on that basis is as ludicrous as suggesting that those who smoke a pack of cigarettes a day, purchase by the carton with the intent to sell what they do not plan to use in the near future.  Another equally ludicrous example would be to assert that an occasional user of alcohol should be charged with the intent to engage in illegal sales because they maintain a well-stocked bar or an extensive cellar of rare wines[8].  The same, of course, is true for people who purchase oversized quantities of food or supplies at warehouse outlets; not because they intend to sell what they do not immediately need, but because of the substantial cost savings that they realize from doing so.

4.  The suspect possessed drugs contained in separate packages, each of which contains the same weight or amount of the illicit drug.

Drug dealers typically pre-package baggies or bindles containing both smaller and larger quantities of drugs for purchase by users with differing needs.  A user who can afford three grams of a drug, for example, may receive three separate packages each of which contains a single gram.  It is not reasonable to assume that a user who possesses three identical packages had necessarily prepared those packages with the intent to sell.

5.  The suspect possessed a number of separate packages, each of which contains different amounts of the drug.  

As in the previous example, a purchaser of drugs will often be given the amount they desire in whatever packages their dealer may have available.  A user who requests an ‘eight-ball’ (3.5 grams) may be given a package containing a single gram and five packages each containing a half gram.  There is no basis for assuming that they possess packages containing variable weights with the intent to sell them to users with differing needs.

        6.   The suspect possessed a number of separate packages, each of which contains different

              variants of a drug

All drugs may vary in purity, and most may differ in color, crystalline structure, moistness, etc.  Because dealers typically obtain drugs from a single source, it is reasonable to assume that a suspect who possesses two or more variants of a drug has purchased them from different dealers or from the same dealer at different times, and that they possess the drugs for personal use rather than for sale.  In cases where drugs are found in multiple packages, and where there are no obvious differences in appearance, it is advisable to send them to an independent laboratory to determine if they vary in purity.

7.  The suspect possessed a number of baggies or other containers that contain small amounts or traces of drugs.

Both casual and habitual drug users typically keep the containers in which they purchase and/or store their drugs to scrape or otherwise extract any residue of drugs remaining in those

containers.  The presence of even a considerable number of previously used baggies or other containers provides no evidence of possession of drugs for sale.

8.  The suspect was arrested with a single package containing a significant amount of the drug

It is not uncommon for users who consume relatively small amounts of a drug to divide a larger quantity they may have purchased into smaller packages to insure that they do not use more than they had intended on a daily basis.  If they are found in possession of a single package containing a relatively significant amount of the drug, it is quite possible that their arrest occurred shortly after they had made their purchase and before they had had the opportunity to divide it into the smaller packages they intended for personal use over a period of time.

9.  The suspect was charged with possession for sale because he was not under the influence of the drug at the time of arrest.

The DRE officer who testified in the crack cocaine case cited above claimed that the client was guilty of possession for sale because he did not manifest any signs of intoxication and because toxicology results indicated that he had not used cocaine.  He further testified that all of the approximately 100 arrests he had previously made for possession of cocaine were all found to be intoxicated on the basis of toxicological findings.  Setting aside the obvious possibility that the suspect had not yet had the opportunity to ingest the cocaine he had purchased, the officer’s testimony rests on three questionable assumptions:

·  that toxicological tests are conducted routinely on all persons arrested for simple possession,

·  that the arresting officer would be informed routinely of toxicological findings, and

·   that none of the other suspects charged with possession by this officer were also charged with possession for sale.

10.   The suspect was arrested in a location known to be frequented by drug dealers.

It can be assumed that individuals who purchase drugs for their personal use typically do so at street locations or residences that are frequented by drug dealers.  There is no basis for the assumption that individuals arrested in possession of drugs at such locations are necessarily involved in the sale of drugs.

11.  The suspect possessed a scale, pager or cell phone believed to be indicia of sales.

Drug dealers – particularly those who deal large amounts of drugs – typically use carefully calibrated double or triple beam scales to insure the accuracy of the weight of the drugs they distribute.  Relatively cheap digital scales sold at ‘head shops’ are used by many drug users to verify that they are not being cheated when they make a purchase.  They do not provide strong evidence that these individuals are engaged in the sale of drugs, especially in the absence of any other indicia of sales or manufacturing mentioned above.  It is unnecessary to add that the widespread use of cell phones and pagers in recent years has totally vitiated the probative value that the possession of these communication devices might have had in the past.

12.  The Suspect had cell phone voice or text messages requesting drugs.

When a person who uses illicit drugs has a need to make a purchase he or she may call one or more of their regular suppliers to place an order or to inquire if that dealer can provide what they want.  It is also common for people who use drugs to call or leave messages for a friend or acquaintance that is also known to be a user to ask if they have a source.  Most users – including those who do not deal drugs – frequently receive such messages.

There is no basis for assuming that a person who has received voice or text messages on their cell phones requesting drugs is a dealer unless they respond affirmatively (i.e., that they can supply the drugs that were requested, and/or if they make arrangements for a time and place when the drugs will be available and/or specify a price for the requested drugs.)

In one case the testifying officer offered testimony that the defendant possessed drugs for sale because the defendant had received five text messages inquiring about the availability of drugs.  These messages were offered as evidence and were published to the jury.  What the jury was not told was that the defendant had (1 ) more than 200 other stored text messages that made no reference to drugs, (2) that he had responded to almost all of the other messages, and (3) that he had not responded to any of the messages concerning drugs.  While it is possible that the defendant was, in fact, a drug dealer, the totality of the evidence suggests that he was not.

Finally, it is ironic that when defendants are charged with possession for sales primarily on the basis of weight that it is rare for law enforcement officials to seek a warrant to search the defendant’s residence, vehicle or other locations where he or she may store property.  If the defendant is truly believed to be a dealer, it is reasonable to assume that (1) paraphernalia for sales may be found in these locations, and (2) that a greater quantity – or at least an additional amount of the drug – would be stored in these locations.  Because it is always to the advantage of law enforcement officers and prosecutors to amass whatever evidence they can and to charge a defendant with greater rather than lesser offenses, their failure to secure such evidence through a search of other places where drugs or paraphernalia may kept is, at best, an indication of a poorly conducted investigation, and, at worst, a token of the flimsiness of the case against a defendant charged with possession for sale.

In addition to the points raised above that should be explored fully in cross-examination, in cases that rest exclusively or primarily with the quantity of the illicit substance should include the following:

If it is determined, for example, that the defendant was found with 23 grams of methamphetamine, the officer will typically state the he or she believed the defendant was in possession of the drug for sale because (1) it exceeded the weight used by the typical user in a day or so, and (2) that the typical user does not purchase more than a single days supply.

The officer should then be asked if he or she would have made the same assumption if the weight possessed was 19 grams, 14 grams, 11 grams, 8 grams, etc.  Alternatively defense counsel may begin with one gram, and proceed upwards in increments – asking in each instance if such an amount would constitute possession for sale.

Because no objective standards are defined by statute or in law enforcement training manuals, the officer will find it difficult to state what quantity of the drug would suffice to lead him or her to assume possession for sale.  If, however, the officer does specify a weight that would trigger the assumption that possession was for sale, he or she would be asked to cite the authority for that inference, or – preferably, asked to show where such an objective standard is defined in training materials or by statute.

Except for my brief comments about such specific drugs as cocaine, methamphetamine and PCP, the effective refutation of the kind of police testimony discussed above can be enhanced by defense counsel’s understanding of the effects of a wide variety of illicit drugs.  It is also important to remember that even well trained and experienced police officers cannot be expected to answer questions about the mechanisms of drug actions, differences in effects caused by different routes of drug administration, the time-course of drug absorption or excretion or about the varied subjective effective of drugs.  Nor can they fare well under cross-examination about the life-styles and patterns of drug users or sub-groups that they have not encountered on the streets.  In the absence of specific knowledge, they have no recourse but to rely on over-generalized and inaccurate stereotypes that can be easily refuted.

Expert witnesses for the defense play an essential role in many possession for sale cases.  In addition to their importance in educating the jury about the nature and effects of specific drugs and refuting the often incomplete and incorrect facts presented by many prosecution witnesses, their most critical role is to explain how addiction, dependence, and habituation to a variety of drugs inevitably requires that the user must obtain and use increasingly larger and more frequent doses of their drug of choice.  The expert should also serve to refute the belief – that many jurors are predisposed to accept -- that users of illicit drugs are merely wanton pleasure-seekers who refuse to accept adult responsibilities or restraints.

As Alan Leshner, the former Director of the National Institute on Drug Abuse put it “Drug addiction is a brain disease . . . . and it matters”[9]. Only an expert witness can hope to explain how those who become dependent on illicit drugs may be using their drug of choice to compensate for deficiencies in the chemistry of their brains, to medicate themselves for a host of undiagnosed and untreated medical or psychiatric diseases or disorders, or to overcome the mental consequences of the myriad of developmental ‘risk factors’ that we have come to understand as the underlying cause of much drug abuse. 

Finally, it is essential for the defense expert to acknowledge that he or she cannot be certain if the defendant possessed drugs for personal use or for sale.  But they must make it clear that no-one can make that determination on the basis of weight alone, or on the type of packaging and the other considerations discussed above.

[1] I have confirmed that Ohio has set specific statutory weights for prosecution of trafficking of illicit drugs.  Both Idaho and New York previously had set statutory weights to infer possession for sale, but these are no longer in effect.  Of the 19 other States that responded to my inquiry, weight alone is not considered as a basis for inferring possession for sale.  I would like to acknowledge the help provided by Mr. John Wilkinson of the American Prosecutors Research Institute for his assistance in obtaining this information.

[2] From 6 to more than 20 percent of non-clinical subjects studied by Burns & Lerner, 1975; Feldman et al, 1979; and Pittel & Feldman, 1978) report use of PCP twice or more per day.  It is likely that this percentage is considerably higher in hospitalized and other clinical populations of PCP abusers...

Burns, Stanley R. (1975) Phencyclidine – States of acute intoxication and fatalities, Western Journal of Medicine, 123, 345-349; Pittel,  Stephen M. & Feldman, Harvey (1977) Preliminary study of the fad drug PCP (Phencyclidine) Rockville, MD, National Institute on Drug Abuse

[3] The size and shape of rock cocaine may also be affected by the size and shape of the container in which it is produced.  The rocks produced in a test tube, for example, would be smaller and rounder than those produced in an open pan.

[4] California Commission on Peace Officers Standards and Training (2002) Basic Course Workbook Series: Learning Domain 12 – Controlled Substances (Version 2),, Sacramento, CA., California Department of Justice

[5] Jim Crosswhite, a retired veteran California Highway Patrol sergeant and Academy trained DRE expert who was responsible for the training of CHP officers in his assigned area regarding drug related arrests, has confirmed that no information regarding the criteria for making possession for sale arrests is provided in the training of these officers.  In his comments on an earlier draft of this manuscript (Crosswhite, 2003), he states that “ DRE training did not focus on possession or possession for sales as the primary goal. The goal was the identification of physical symptoms associated with a particular grouping of substances. . . . (T)he issue of an amount sufficient for the charge of sales was left to a subjective analysis by the officer and or his immediate superior.” Crosswhite, Jim (2003, 2009) Personal communication.

[6] Grinspoon, Lester & Hedblom, Peter (1975) The Speed Culture: Amphetamine Use and Abuse in America, Cambridge, MA, Harvard University Press.

I am personally aware of a client who typically used upwards of 40 grams of methamphetamine a day and colleagues have told me of others with comparable patterns of use. 

[7]  Information about price and purity of drugs sold in major cities throughout the United States can be found in a number of DEA publications including the periodic ‘Illegal Drug Price and Purity Report for the USA’, ‘From the Source to the Street’ and the annual report of the National Narcotics Consumers Information Committee 'The Supply of Illicit Drugs to the U.S. from Foreign and Domestic Sources'.   Local information for regions throughout California can be obtained from the California Narcotics Officers Association; information from other Western States can be obtained from the Western Regional Information Network. More specific local information may be available from toxicology laboratories or from community drug treatment centers and from law enforcement narcotics task forces that operate in many communities.

[8]⁴ It should be noted that vendors of wines and other spirits typically offer 10-20 percent discounts on purchases of case lots.

[9] Leshner, Alan I. (1998) Addiction is a brain disease – and it matters. National Institute of Justice Journal, 237, 2-6