Recently the Illinois Appellate Court, First District (Chicago area) issued a decision in an interesting and important case. In People v. Clinton the defendant was convicted of possession with intent to deliver more than 1 but less than 15 grams of heroin. That is a Class 1 felony punishable by 4-15 years in prison. In this case, defendant was sentenced to 10 years.
The decision is a nice read but here is the short and sweet version. Defendant was spotted by 3 undercover Chicago police officers in a "high-crime area". The officers testified when defendant saw them and realized they were cops he turned and walked away. Defendant eventually started running and was seen throwing something to the ground [As a side note, this is a very typical fact pattern].
The object allegedly thrown was a bag that contained 13 smaller bags of white powder, suspect heroin. $40 was found on defendant's person and nothing else.
As with all other drug cases, the suspected narcotics were packaged and sent to the Illinois State Police Crime Lab for testing and analysis. The crime lab is also where the drugs are officially weighed.
The lab technician testified he only tested 6 of the smaller bags or 1.336 grams. This is normal and is typically allowed where all of the suspected drugs look the same. And I am sure in this case that was true. But there is case law that discusses fake or look-a-like drugs and apparently heroin is easy to fake.
In People v. Jones, 174 Ill. 2d 427 (1996) the Illinois Supreme Court held that just because one bag may test positive for heroin, it's an improper assumption that any and all remaining bags will also test positive.
In Illinois, possession with intent to deliver less than 1 gram of a controlled substance is a less serious offense than more than 1 gram but less than 15. In this case, the technician or chemist simply emptied bags until he had a little more than 1 gram on the scale before testing them.
The issue before the Appellate Court was: can a chemist combine packets to reach a specific weight prior to testing for the presence of a controlled substance? The court held this was not proper and cited Jones as authority. The court wrote defendant could, therefore, be guilty of possession with intent to deliver less than 1 gram of heroin since some powder tested positive. That would be a Class 2 felony (3-7 years) instead of a Class 1.
The next issue on appeal was whether or not the State proved beyond a reasonable doubt the intent to deliver. Proving intent to deliver is almost always through circumstantial evidence. Factors include: weight, packaging, presence of cash, cell phones, beepers, police scanners, scales, etc. Basically the tools or signs of drug dealing is what's being looked for. In this case, the only other item(s) recovered was $40.
This is where the case gets interesting. Illinois courts have held that where small amounts of drugs are recovered, at least one other factor must be present to support an intent to deliver charge. In this case, the reviewing court cited three cases for this proposition. No where in the Illinois Pattern Jury Instructions is this judicially created requirement mentioned.
At trial the issue of intent to deliver is a question of fact the jury or judge (if bench trial) is to determine. I find this case slightly odd in that the Court addresses a factual finding at the trial court level and ultimately reverses that finding.
A reviewing court can review the sufficiency of evidence on a case by case basis and that's what they did in Clinton. Not that my opinion matters but I think this is improper of a reviewing court to do. Unless the evidence or lack thereof is so incredibly slanted in favor of one party, a reviewing court should not disturb a factual finding of the trial court. In this case, the fact finder was a jury who heard and saw all of the evidence and determined the State had met its burden in proving intent to deliver.
And quite honestly, the only people that have 13 small bags of heroin are those that are selling it. It's really that simple. Users buy a bag or two at a time. And the $40 found on the defendant was probably from the sell of 4 $10 bags because that's how they are sold here in Chicago. This was truly a typical arrest of someone selling dope. Although I didn't see the evidence, my common sense and experience handling drug cases tells me it was a proper charge.
The Court held the packaging of the drugs alone was not enough evidence to convict defendant of possession with intent. Defendant was instead found guilty of simple possession of less than 1 gram of heroin. The case was sent back to the trial court for re-sentencing.