Philadelphia Criminal Defense Blog
What is Possession with the Intent to Deliver?
There are defenses to Possession with the Intent to Deliver charges. Our Philadelphia criminal defense lawyers can help.
What is Possession with the Intent to Deliver (“PWID”)?
Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.
Possession With the Intent to Deliver is a felony drug possession charge. It typically involves the possession and sale of illegal drugs such as marijuana, crack cocaine, heroin, and PCP. It can also apply to the possession and sale of prescription medications such as oxycodone, xanax, and percocet.
Although there are a number of different types of drug charges under state and federal law, the main difference between drug charges and how serious they are is whether the prosecution alleges that the defendant sold or intended to sell the controlled substance in question.
Possession with the Intent to Deliver involves possessing illegal drugs or a controlled substance and either selling them or intending to sell them. This means that the defendant will typically be charged with PWID when police or other law enforcement allege that they either caught the defendant in the act of selling drugs or caught the defendant with a sufficient quantity of drugs such that it is fair to say that the defendant must have planned on selling them at a later date. In some cases involving lesser quantities of drugs, the police may still arrest a defendant for PWID where the defendant also posses items which suggest drug distribution and trafficking such as scales, new and unused packets which could be used to break up and package a larger amount of drugs into smaller, sellable sizes, significant amounts of money, and implements for cutting the drugs up.
Is Possession with the Intent to Deliver a Felony in Pennsylvania?
Possession with the Intent to Deliver is always an ungraded felony in Pennsylvania. The maximum sentence for a PWID conviction depends on the controlled substance in question. For a first offense, a marijuana conviction has a maximum sentence of five years, while crack cocaine has a maximum sentence of ten years, and the sale of heroin has a maximum sentence of 15 years in prison. Because PWID is always a felony, most defendants who are charged with PWID have a right to a preliminary hearing in the Philadelphia Municipal Court or before a Magisterial District Justice in the suburbs, and if the case proceeds beyond the preliminary hearing, then the trial would be heard in the Court of Common Pleas.
There is a limited exception for selling marijuana in that a first offense marijuana PWID charge in Philadelphia will be tried in the Philadelphia Municipal Court without the benefit of a preliminary hearing. Fortunately, a defendant who is convicted in the Municipal Court always has the right to appeal to the Court of Common Pleas for a brand new trial. In that case, the Municipal Court trial will serve the same effect as the preliminary hearing. However, pre-trial motions must still be litigated in the Municipal Court.
How is Possession with the Intent to Deliver different from regular possession of a controlled substance?
Demetra Mehta - Philadelphia Drug Possession Defense Attorney
Possession with the Intent to Deliver is a felony charge, while Knowing and Intentional Possession of a controlled substance is a misdemeanor. PWID may be punished by substantial fines and jail time of up to 15 years for a first offense depending on the controlled substance in question. Knowing and Intentional Possession, however, may be punished by only up to one year of jail time and substantially lower fines for a first offense. Knowing and Intentional Possession could apply anytime the defendant possesses some kind of controlled substance without a prescription or illegal drug. PWID, however, requires both the possession of a controlled substance or illegal drug and the intent to sell that drug. PWID can also apply when the defendant is charged with growing or manufacturing some kind of drug, and it also applies to the possession or cultivation of marijuana plants. Therefore, possessing an illegal drug or controlled substance without a prescription can always qualify as Knowing and Intentional Possession, but the prosecution may only obtain a conviction for PWID when the prosecution can also prove beyond a reasonable doubt that the defendant sold or intended to sell the controlled substance.
What are the defenses to Possession with the Intent to Deliver?
There are a number of potential defenses which could apply in a drug trafficking case. Potential defenses include:
Pre-trial Motions - In every case, the prosecution must be able to prove that the evidence it obtained and wishes to use at trial was obtained in a legal manner. If the defense believes that the police may have conducted an illegal search or seizure, then the defense may file a Motion to Suppress the drugs, money, or paraphernalia which the police recovered as a result of the illegal search or seizure. Once the Motion to Suppress has been filed, the trial court will hold an evidentiary hearing. The prosecution will then have to prove by a preponderance of the evidence that the police did not violate the requirements of the Constitution in obtaining the evidence. If the prosecution cannot meet its burden, then the evidence could be suppressed and the charges dismissed. In other cases involving confidential informants, it may make sense to file a Motion to Reveal the Identity of the Confidential Informant. These motions are difficult to win, but in some cases, the defense has the right to know who the Confidential Informant was and have the opportunity to call that person as a witness at trial. Pre-trial Motions like the Motion to Suppress are extremely important in drug cases as the prosecution will often not be able to proceed if the police did something illegal.
Constructive Possession - In order to convict a defendant of selling drugs, the government is required to prove that the defendant either physically or constructively possessed the drugs. In many cases, police may observe behavior that appears suspicious and then find drugs or some other contraband in a "stash". In other cases, police may recover drugs which were hidden in a house or car and not physically on the defendant. In these types of cases, the prosecution will be required to prove that the defendant possessed the drugs - this means showing that the defendant both knew the drugs were there and that the defendant had the intent and power to control the drugs. Mere proximity to a stash or finding the defendant in a car that also has drugs in it is often not enough for the prosecution to obtain a conviction. Therefore, whether or not the defendant actually possessed the drugs may be a potential defense to a Possession with the Intent to Deliver charge.
Narcotics Experts - In cases where the police find a large quantity of drugs (or a smaller amount with some indicia that they were going to be sold) but do not actually catch the defendant in the act of selling the drugs, the prosecution will call a narcotics expert to testify. The prosecution expert will typically testify that there is something about the quantity of the drugs or the way in which they were packaged that suggests that they were possessed with the intent to deliver. Further, the Superior Court has affirmed convictions for PWID based solely on the possession of 33 packets of crack cocaine without any observed sales where the government's witness testified that a defendant in possession of that many packets would have possessed them with the intent to sell. Just as the prosecution may use expert witnesses, the defense also has the right to have an expert witness evaluate the evidence and potentially testify at trial as to whether the circumstances could have been indicative of personal use instead of sale. In case where the police did not observe any drug transactions, the use of a defense expert witness could be the difference between a conviction for felony Possession with the Intent to Deliver and misdemeanor Knowing and Intentional Possession.
Trial by Jury - In every criminal case where the charges are punishable by a year or more, the defense has the right to a jury trial. When the defendant elects to have a jury trial, the attorneys and the Court will select twelve jurors and two alternates to hear the case. The prosecution must convince all twelve jurors that the defendant is guilty beyond a reasonable doubt. If the jurors are not unanimous, then there will not be a verdict. In that case, the prosecution may drop the charges, make a better offer, or elect to re-try the defendant.
What sentence will I get for a Possession with the Intent to Deliver Conviction?
Zak Goldstein - Philadelphia Criminal Defense Lawyer
Both the federal system and New Jersey state courts have serious mandatory minimums for drug convictions. Pennsylvania, however, does not currently have any mandatory minimums for drug offenses. Therefore, the sentence for a drug conviction can vary tremendously as judges retain a great deal of discretion in determining what sentence to impose on any given defendant.
This judicial discretion is not unlimited, however, as judges are required to review and consider Pennsylvania's sentencing guidelines prior to imposing a sentence, and a judge must be able to put reasons on the record for departing from the guidelines.
As a general rule, the severity of the sentence called for by the guidelines depends on the type of drug involved and the quantity of the drug. Convictions for trafficking in harder drugs like PCP and heroin will result in greater guideline sentences, while convictions related to marijuana will often result in much lower guideline sentences or even recommendations to the judge of probation. Given the wide variety in potential weights and drugs, it is impossible to make a blanket statement as to what type of sentence a defendant could receive for a drug conviction. However, once retained, our criminal defense lawyers can review the evidence against you and calculate what the recommended sentence could be in the event of a conviction.
Our Philadelphia Criminal Defense Lawyers Excel in Fighting Drug Possession and Possession with the Intent to Deliver Cases
The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have successfully represented hundreds of clients in drug possession and drug trafficking cases. We are experienced and understanding defense attorneys who will use our high level of skill and expertise on your behalf. We have successfully litigated pre-trial motions and obtained pre-trial dismissals and acquittals at trial. If you are facing drug possession charges, call 267-225-2545 for a free criminal defense strategy session.
Charged With Drug Possession or Possession with the Intent to Deliver? Get Help Now
Constructive Possession: Can I be convicted of a crime if I didn't have anything on me?
Criminal Defense Lawyer Zak Goldstein
Pennsylvania and United States law make the possession of all sorts of substances and objects illegal. For example, state and federal law may make it illegal to possess drugs, guns, and other types of contraband under all sorts of different circumstances. When a defendant is arrested and charged with a possessory offense, the actual possession of the contraband in question is an element of the offense. This means that the government must prove that the defendant possessed the thing beyond a reasonable doubt. Although this sounds simple in theory, possession can often be difficult to prove because police and other law enforcement officers often find contraband which is not physically on someone. In that case, the doctrine of constructive possession may come into play, and it may provide a strong defense in your case.
What is Constructive Possession?
Constructive possession is a legal doctrine which allows prosecutors to bring criminal charges and potentially obtain convictions for possessory offenses like drug possession and a Violation of the Uniform Firearms Act (“VUFA”) in cases where the contraband was not actually found physically on the defendant. In cases where the defendant is facing gun charges or drug charges, constructive possession is often a defense at trial even if the motion to suppress was unsuccessful. However, constructive possession, unlike physical possession, can be difficult to explain and for jurors to understand.
Physical possession is relatively simply. If you are a felon and you have a gun in your pocket, then you are committing a Violation of the Uniform Firearms Act. If the police arrest you and find the gun in your pocket, then they can properly charge you with a weapons offense. In that type of case, the main defense to a gun charge would usually be a motion to suppress – if the police stopped and searched you illegally, then the evidence could be excluded and the case dismissed. But because the gun was in your pocket, it is pretty clear to whom the gun belonged at the time the police stopped you, and you would have been in physical possession of the gun. That is not to say you will automatically be convicted if you lose a motion to suppress. However, any defenses other than a motion to suppress would likely focus on whether the police officers are telling the truth instead of whether you were legally in possession of the gun.
Can I be convicted if the gun wasn’t on me?
Constructive possession, on the other hand, could apply when the gun or drugs are not actually in your pocket, waistband, or somewhere else on your person. For example, it may apply when contraband is found in a car or a house or when drugs are stored in a stash somewhere near where someone is selling them. In that case, the prosecution may still be able to obtain a conviction for drug possession if the prosecution can prove that you constructively possessed the drugs.
How can I be charged with possession if I didn’t have the drugs on me?
In order to establish constructive possession, the government must prove something more than the defendant’s mere presence near the item in question. In addition, the government must show that the defendant had both the intent and the power to control the contraband. Obviously, where the defendant is found near drugs, the defendant probably had the power to control them because the defendant could have easily walked over and picked them up. However, that alone does not make them the defendant’s drugs. If other people have access to that area, then the drugs could belong to those other people. It may not have been a great idea to hang around in the area where they were stored, but that does not make them the defendant’s. Instead, the prosecution must also show that the defendant had the intent to control the drugs. This intent element is what makes constructive possession difficult to prove.
How does the prosecution prove constructive possession?
In determining whether the prosecution has proven the intent necessary to show constructive possession, courts will look at the totality of the circumstances. This means they will look at things like how close the object is to the defendant, whether the defendant makes any statements, whether police observed the defendant making quick movements which suggest the defendant was trying to hide the object, and whether the defendant displays consciousness of guilt such as nervousness or flight. The degree to which the contraband was visible will also be relevant, and a court will also likely consider whether the prosecution can connect the defendant to the area from which the drug or gun was recovered by police.
Thus, if the defendant was the owner and operator of a car from which the police recovered a gun, a court is more likely to find that the defendant knew about and owned the gun than if the defendant was merely borrowing the car from the friend. However, the defendant's mere ownership of the vehicle or police finding paperwork connecting a defendant to a house do not automatically establish constructive possession because the passenger could have brought the gun into the car and tried to hide it when the police pulled the vehicle over. Instead, the court must look at the totality of the circumstances. This means that there are cases in which illegal drugs and guns are found in cars or houses and it is simply not possible for the government to prove to whom those items belonged.
The constructive possession doctrine protects innocent people from being convicted of possessory offenses merely based on their proximity to the contraband. If I am watching television in my living room and my friend puts his bong on the table, then I cannot necessarily be convicted of drug paraphernalia just because my friend left the bong there. At the same time, it is fairly easy for police to try to use the doctrine against a given defendant by testifying to factors such as nervousness, furtive movements, and incriminating statements which simply may not have existed. In cases where police find a gun in a car, they are under a lot of pressure to charge someone with the gun and testify in such a way that it will lead to a conviction. Therefore, it is extremely common to see constructive possession cases where the police testimony will attempt to establish circumstances which suggest that one of the occupants of the vehicle must have been the owner of the contraband. However, in order for a defendant to be convicted, the judge or jury must believe beyond a reasonable doubt that the defendant constructively possessed the item in question, and vague reaching movements or nervous behavior simply may not be enough. Our criminal lawyers excel at cross examining police witnesses in preliminary hearings, pre-trial motions to suppress, and at trial, and we will use our skills to fight allegations of constructive possession.
Philadelphia Criminal Defense Lawyers for Drug and Gun Cases
Your best bet is to stay away from things that are illegal. If you are on probation or parole, or you have a record which disqualifies you from possessing a firearm, it is risky to be around drugs or a gun. Even if they do not belong to you, the police may charge you under a constructive possession theory. You may be able to sort everything out in court, but the criminal justice system is often unpredictable. Fortunately, if you are charged with a crime, with very few exceptions, you have the right to a jury trial at which the government must prove to twelve jurors that you committed the crime charged beyond a reasonable doubt. If you are facing criminal charges or believe you may be under investigation for a crime, you should speak with one of our award-winning Philadelphia criminal defense lawyers immediately. We will be able to evaluate whether constructive possession could be a defense to your charges. We offer a free, 15-minute criminal defense strategy session. Call 267-225-2545 to speak with a defense attorney today.
When can police conduct an inventory search of my car?
There are real limits to when police can search your car. Learn more about police inventory searches and when police may tow and search your car.
Police Often Need Search Warrants
As a general rule, police officers need a warrant to conduct a search of a person or a place. However, there are a number of exceptions to the warrant requirement, and one of them is the automobile exception. When the police want to search a car, they do not have to get a warrant. Instead, under both Pennsylvania and Federal case law, police officers need only probable cause to search a vehicle. Probable cause is the same standard which would be required for a magistrate or judge to issue a search warrant, but the police are not required to swear out an affidavit of probable cause and get a judicial officer to sign off on a search of a vehicle prior to conducting the search.
What Is Probable Cause?
Probable cause means that it is more likely than not that evidence of a crime will be found as a result of a search. For example, police officers will frequently claim that they smelled an odor of marijuana coming from a vehicle and therefore had probable cause to search the car. Under the government’s theory, the fact that the car smells like marijuana makes it more likely than not that marijuana will be found in the car if the police conduct a search, and therefore the police may search the car. If that search turns up a gun, drugs, or some other kind of contraband, then the prosecutor will argue that the search was justified because of the initial smell of marijuana. Of course, when the police claim they searched the car because of the smell of marijuana and then do not actually find any marijuana, it may be possible to challenge the search by filing a motion to suppress and arguing that the police testimony is not credible.
Other Exceptions to the Warrant Requirement
There are other ways that police officers will try to justify a car search. When police stop a car and have a vague hunch but are lacking in probable cause, they may attempt to use a traffic violation or motor vehicle code violation as the basis for the search by having the car towed so that they can do an inventory search. For example, if the police pull over a car with an expired registration, they may decide to tow the car instead of simply parking it on the side of the road so that they can conduct an inventory search of the vehicle. If they find some kind of contraband as a result of the inventory search, then they may bring criminal charges against the owner or operator of the car and argue that the inventory search exception to the warrant requirement justified the search and eliminated their need to obtain probable cause in a warrant. However, many of these decisions to tow and search cars are pretextual.
Limits on Police Inventory Searches of Cars
Fortunately, the Pennsylvania Supreme Court has held that the police may not tow a car and conduct an inventory search simply because the owner or operator has committed a motor vehicle code violation which prevents the car from legally driving on the streets. This means that the police may not tow a car and conduct an inventory search due solely to the fact that a car has an expired registration, lacks insurance, or has some other physical or regulatory defect. Instead, the Pennsylvania Supreme Court has held that in order to tow a car, the police must be able to show that immobilizing the car and leaving it where it was parked would pose some kind of threat to public safety.
Commonwealth v. Laganella
In Commonwealth v. Laganella, Harrisburg police pulled the defendant over for pulling into traffic without using a turn signal. Upon pulling the car over, the police officer learned that the vehicle was missing its emissions inspection sticker and that the defendant’s license had been suspended. Instead of simply issuing a ticket, the officer informed the defendant that the officer would have to tow the car. The defendant stated that there was no need for the car to be towed and that he could have a friend, who was a tow truck driver, pick the car up. Nonetheless, pursuant to department policy, the officer called a tow truck and searched the car, eventually finding drugs and a shotgun. The defendant, who had a prior felony conviction, was then charged with drug and gun charges, including VUFA Sec. 6105 (felon in possession of a firearm). After the trial court refused to suppress the gun, the defendant was convicted and sentenced to three to ten years in prison.
The Pennsylvania Supreme Court ultimately reversed the trial court’s decision. The Court recognized that Pennsylvania law gives a police officer two options when the officer stops a vehicle operated by a driver whose license has been suspended: the officer may either immobilize the vehicle or tow the vehicle. If the officer is permitted to tow the vehicle, then the police may conduct an inventory search not for the purpose of finding contraband, but for securing the operator’s belongings for the benefit of both the operator and the police. However, Pennsylvania law provides that the officer may only tow the car when the vehicle poses public safety concerns warranting its towing and storage at an impound lot. Thus, if the vehicle can be safely parked or privately towed, then the vehicle will not pose public safety concerns which would warrant its towing. Further, when the police do tow a vehicle and conduct an inventory search, they must do so pursuant to a reasonable, standard policy of securing and inventorying the contents of a vehicle. The requirement that police have a standardized policy seeks to prevent police from using their ability to conduct an inventory search as a pretext.
In an earlier decision, the Pennsylvania Superior Court had held that the police may conduct an inventory search regardless of whether they choose to merely immobilize the vehicle or actually tow it. However, in Laganella, the Pennsylvania Supreme Court rejected this rule and held that police may only conduct an inventory search when they tow the vehicle. Because police may only tow the vehicle when there is a public safety concern, this creates a real limit on the ability of police to pretextually call a tow truck and conduct an inventory search. Thus, when the vehicle cannot be operated solely because the driver does not have a license or because the vehicle is missing its registration or insurance, the police may not tow the vehicle if the vehicle can be safely parked in the area where it was pulled over.
We Can Help With Criminal Charges in Pennsylvania and New Jersey
If you are facing criminal charges in Pennsylvania or New Jersey, we can help. We understand what you're going through, and we will use our skill and experience to get you through this. The Philadelphia criminal defense lawyers of Goldstein Mehta LLC will fight for your rights at trial or on appeal. Our attorneys have successfully defended thousands of cases in Philadelphia and the surrounding counties, and we can help with all types of state and federal charges in Pennsylvania and New Jersey. If you believe the police may have illegally searched you or your car and found some kind of contraband, we may be able to file a motion to suppress. Call 267-225-2545 for a free criminal defense strategy session with one of our award-winning criminal defense lawyers.
Potential Defenses to Gun Charges
Philadelphia Criminal Defense Lawyers for Gun Charges
We frequently help clients who are facing gun charges in Pennsylvania and New Jersey. In this video, Philadelphia criminal defense attorney Zak Goldstein explains three of the most common defenses to illegal gun possession charges. As a general rule, gun charges are particularly serious. They are almost always felony charges. In New Jersey, possession of a firearm without a permit carries a mandatory minimum of three years in jail even for a defendant with no prior record. In Pennsylvania, although there is currently no mandatory minimum for illegal possession of a firearm, the state sentencing guidelines typically call for jail time even for a first offense. Finally, in the federal system, gun charges carry extremely severe mandatory minimums.
Fortunately, there are a number of potential defenses to firearms offenses. Three of the most common defenses include:
Philadelphia Gun Charges Lawyer Demetra Mehta
Possession - All gun charges require the prosecution to show that the defendant actually possessed or owned the firearm. Depending on the evidence, the prosecution may not be able to show that it was actually the defendant's gun or that the defendant ever possessed the gun. In cases where the defendant is arrested with the gun in a pocket or waistband, possession may not be the strongest defense.
However, in cases where the defendant is not in actual, physical possession of the gun, the prosecution may not be able to prove possession. In order to prove possession of a gun that is not physically on the defendant, the prosecution will rely on the doctrine of constructive possession. Constructive possession requires the government to show that the defendant both had access to the gun and the intent to control it. This mean that it is not nearly enough for the government to show only that the defendant was found near a gun. This issue frequently arises in cases in which a person is stopped in a vehicle which turns out to have a gun in it. Without some additional evidence that the defendant both knew of the gun and intended to control it, the mere discovery of the weapon by the police may not be sufficient for the government to obtain a conviction.Suppression - In any case involving a possessory offense, the prosecution must be able to show that the police found the evidence in a lawful manner. There are real limits on the authority of the police to stop individuals and search their belongings, including their cars and their homes. If the police were required to obtain a warrant prior to the search and did not do so, or they had no real basis for stopping and searching the defendant, then it may be possible to have the evidence suppressed and excluded from trial. In a gun case, if the police stopped and searched the defendant without reasonable suspicion or probable cause, the gun could be suppressed and the case could be dismissed.
Operability - In Pennsylvania, many gun offenses require the Commonwealth to send the gun to a lab for ballistics testing in order to prove that the gun was in fact a real gun and that it was operable. Both VUFA Sec. 6108 (possession of a firearm on the streets of Philadelphia) and VUFA Sec. 6106 (possession of a concealed firearm without a permit) only apply when the defendant possesses a real, operable gun. If the gun is actually a BB gun or air soft gun, or it cannot be made to fire without substantial repairs or alterations, then these criminal statutes may not apply. Therefore, the Commonwealth will have to prove that the gun was real and operable. In some cases where a complaining witness or police witness testifies that they saw the defendant with a gun but the gun was never fired and ultimately never recovered, the prosecution may not be able to prove that it was actually a real gun. If they cannot, then the defendant could be acquitted at trial by a judge or jury. This rule does not apply to the felon in possession of a firearm statute (VUFA Sec. 6105).
We Can Help With Weapons Offenses in Pennsylvania and New Jersey
Every case is different, and there are numerous firearms offenses and other weapons offenses in Pennsylvania and New Jersey. The statutes which often make carrying guns without a license illegal are often more technical and complex than one would expect. Although gun crimes and illegal firearms possession charges are extremely serious, there are often defenses to these charges. Our Philadelphia Criminal Defense Lawyers have the experience and skill to investigate your case, evaluate the evidence against you, and fight for the best possible result. Depending on your case, that could be a pre-trial dismissal, the suppression of incriminating evidence, an acquittal at trial, or a reduced sentence. Call 267-225-2545 for a free criminal defense strategy session with one of our Philadelphia gun lawyers.