Criminal Nuggets...

Kane County State's Attorney Podcast

Illinois Possession Of A Controlled Substance

By Samuel Partida, Jr.

Field Tests To Prove Cannabis

People v. Hagberg, 192 Ill.2d 29 (2000) (Illinois Supreme Court says a valid field test can be used to prove cannabis)

In Hagberg, the court held that although drug field tests could be a sufficient basis for conviction, the evidence surrounding the test in this case and results in this case were too vague and speculative to support conviction where:

  1. The State’s only evidence regarding the identity of the powder found in the folded white piece of paper was the testimony of the officer
  2. The officer could not remember the name of the test, instructions for performing the test, the color that indicated that the substance was cocaine, or the color that the substance actually turned
  3. In fact, in this case, the officer merely asserted that the substance somehow turned the right color, whatever that color might be

However, the court found that this court has never held that a field test is insufficient to identify the substance as a narcotic simply because the test was a field test. The fact that it is a field test by itself does not make the test insufficient.

  • People v. Jackson, 318 Ill.App.3d 321 (1st Dist. 2000) (PCS W/Int can be based on accountability but not in this case)
  • People v. Salvador, 250 Ill.App.3d 795 (3rd Dist. 1993) (PCS W/Int was proven in this accountability case)
  • People v. Robinson, 167 Ill.2d 397 (1995) (great case for the standard on proving possession with intent, stuff like packaging, weight, etc…)
  • People v. Rouser, 199 Ill.App.3d 1062 (3rd Dist. 1990) (often cited case on proving possessio with intent)
  • People v. Nunez, 325 Ill.App.3d 35 (2nd Dist. 2001) (state can prove PCS W/Int on a reverse buy where accused buys drugs from an undercover officer)
  • People v. Bartee, 351 Ill.App.3d 472 (2nd Dist. 2004) (reverse buy case, buys from an undercover, eats drugs then found guilty of possession)
  • People v. Brooks, 271 Ill.App.3d 570 (4th Dist. 1995) (knowledge of being 1000 feet is not an element, state doesn’t have to prove defendant knew he was within 1000 feet just that he was in fact within 1000 feet)
  • People v. Daniels, 307 Ill.App.3d 917 (2nd Dist. 1999) (1000 feet charges are constitutional, defendant’s knowledge of 1000 feet is not required, thee is no knowledge requirement for drug deal 1000 feet of a school or church)
  • People v. Falbe, 189 Ill.2d 635 (suggests that it doesn’t matter if police pick the spot of the deal, but defendant actually picked the spot in this case)
  • People v. Pacheco, 281 Ill.App.3d 179 (1996) (state not required to prove defendant’s knowledge of the proximity of the school)
  • People v. Carter, 228 Ill.App.3d 526 (1992) (constitutional to punish crimes near a church more harshly as being more repugnant to the community)
  • People v. Brooks, 271 Ill.App.3d 570 (1995) (because 1000 feet is not within the body of the offense knowledge is not required)
  • People v. Sparks, 335 Ill.App.3d 249 (2nd Dist. 2002) (distance is a straight time absolute distance, not the practiced distance traveled by foot, also Pythagorean theorem used to measure the distance in this case, what is a church)
  • People v. Daniels, 307 Ill.App.3d 917 (2nd Dist. 1999) (1000 feet within a church)
  • People v. Jones, 278 Ill.App.3d 790 (3rd Dist. 1996) (SW case, defendant wins, he was under some clothes in a closet where crack was found, unclear it was his drugs)

Possession With Intent To Deliver

Intent to deliver a controlled substance is generally inferred circumstantially on a case-by-case basis. People v. Greenleaf, 254 Ill.App.3d 585 (1st Dist. 1993). If there is a small amount of drugs packaged for sale and we are alleging possession with intent there must be at least one additional factor indicative of delivery. People v. Delgado, 256 Ill.App.3d 119 (1st Dist. 1993). No single factor is dispositive and most of the cases list several of the factors taken together in arriving at the determination the defendant intended to deliver. See also People v. Ortiz, 355 Ill.App.3d 1056 (2nd Dist.2005) (defendant arrested and convicted for acting as security for the actual drug dealer).

There are many factors that indicate an intent to deliver:

1. Amount – If the amount is more than what can generally be described as for personal consumption. Users only take or buy what they are going to use, dealers buy in bulk.

  • People v. Robinson, 233 Ill.App.3d 278 (3rd Dist. 1992).
  • People v. Walensky, 286 Ill.App.3d 82 (1st Dist. 1996)

2. Packaging – Where the amount of drugs is divided up into smaller baggies that is an indication of intent to deliver. However, when there is no indication the defendant is the one who did the packaging, there may not be enough to sustain possession with intent.

  • People v. Romero, 189 Ill.App.3d 749, (2nd Dist. 1989
  • People v. Tolliver, 347 Ill.App.3d 203, (1st Dist. 2004) (The division of the 1 1/2 grams of cocaine into 22 smaller packets was insufficient to support an inference of intent to deliver where there was no evidence that defendant had placed the substance in the packets.)

3. Lack of Paraphernalia – No obvious means of consumption likely means the person is not a user but a seller.

4. Combination of Types of Drugs – Multiple types of drugs, such as cocaine, heroin, and marijuana, when all found on the same person can be an indication of an intent to deliver.

  • People v. Delgado, 256 Ill.App.3d 119 (1st Dist. 1993)
  • People v. Green, 256 Ill.App.3d 496 (1st Dist. 1993)

5 Cutting Agent – People v. Romero, 189 Ill.App.3d 749 (2nd Dist. 1989)

6. Purity – People v. Torres, 200 Ill.App.3d 253 (2nd Dist. 1990)

7. Items Near the Drugs – When found near the drugs, scales, baggies, paraphernalia, large sums of money, weapons, cell phones, pagers, and drug records, in addition to packaging and weight can indicate and intent to deliver.

  • People v. Delgado, 256 Ill.App.3d 119 (1st Dist. 1993)
  • People v. Robinson, 233 Ill.App.3d 278 (3rd Dist. 1992)
  • People v. Witherspoon, 216 Ill.App.3d 323 (1st Dist. 1991)
  • People v. Baez, 206 Ill.App.3d 410 (3rd Dist. 1990)
  • People v. Robinson, 233 Ill.App.3d 278 (3rd Dist. 1992)

8. Area Where Arrested – People v. Jones, 215 Ill.App.3d 652 (3rd Dist. ) (Along with the packaging and money recovered on the defendant, the fact he was arrested in an area where street sales were common was an additional factor.)

9. Prior Deliveries – People v. LeCour, 172 Ill.App.3d 878 (2nd Dist. 1988) (Testimony that defendant had delivered approximately a gram of cocaine the day prior to his arrest supported the inference that defendant intended to deliver the cocaine on day of arrest.)

10. Street Value – Street value is probative of defendant’s intent with respect to the use of controlled substance.

  • People v. Sadaka, 174 Ill.App.3d 260 (1st. Dist. 1988)
  • People v. Pintos, 172, Ill.App.3d 1096 (1st Dist. 1988) (9 kilograms of cocaine, whiche carried a street value of approximately $3.6 million was in excess of an amount held merely for personal use.

11. Guns or Weapons – Dealers carry weapons for protection.

12. Statements – Any statements made by the accused, co-defendant’s, customers, or other witnesses can be used to establish possession with intent to deliver.

Examples Where The State Lost On The Intent With Possession Issue

  • People v. Rivera, 293 Ill.App.3d 574 (1st Dist. 1997) (Large amount of cocaine on defendant when he was arrested was not enough to show an intent to deliver where no evidence was introduced that the cocaine was of high purity and therefore likely to be cut for sale, now weapons were found in defendant’s possession , no cash, was recovered, not possession of a police scanner, beeper, or cellular phone and no paraphernalia associated with the selling of cocaine.)
  • People v. Thomas, 261 Ill.App.3d 366 (1994) (Where defendant was not found in possession of a combination of narcotics or any significant amount of money, there were no scales for weighing the narcotics, and there was no evidence that his fingerprints were present on the weapon, then the only evidence left was the amount of 5.5 grams of cocaine, by itself, did not give rise to an inference of intent to deliver.
  • People v. Crenshaw, 202 Ill.App.3d 432 (1st Dist. 1990) (The presence of a loaded weapon in a vehicle and the division of cocaine into 22 smaller packets were not conclusive evidence of an intended delivery where the ownership of the weapon and the vehicle were never established, and the division of 11.2 grams of cocaine into 22 packets could just as well have been the from in which the substance was purchased by defendant rather than the form in which it was to be sold by him.

See Also

  • People v. Falbe, 189 Ill.2d 635 (2000) (UDCS within 1000 feet of a school is constitutionally appropriate)
  • People v. Daniels, 307 Ill.App.3d 917 (a case upholding constitutionality of the 1000 feet enhancement factor)