Among appeals in Virginia drug cases, there are several issues that arise which must be met. A Virginia drug appeals attorney will argue an appeal based on intent and possession. In order for someone to be charged in a drug case, the prosecution must prove that there was intent beyond a reasonable doubt that the defendant was going to distribute that drug, or complete some other similar action. Possession must also be proven beyond a reasonable doubt as well. In the case of constructive possession, however, the opportunity for ambiguity arises, and multiple problems may arise in a drug case.
Intent is an element of various drug crimes. If a defendant is charged with possession with intent to distribute, the Commonwealth has to prove beyond a reasonable doubt that he or she had the intent to distribute those drugs or that marijuana. Likewise, intent is an element of the crime of sale, manufacture, and distribution of controlled substances.
While evidence related to the amount of the drug possessed or the packaging of a drug are among many factors that can be considered in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that the defendant had the intent to distribute, they alone are not dispositive. Intent cannot be inferred simply by showing that there was possession of a certain amount of drugs.
The Commonwealth has to prove that the defendant has that intent. This is an area where there can be confusion in what evidence is admissible. A lot of drug appeals in Virginia can arise out of what jury instruction was given related to intent. An appellate attorney will be able to determine whether an appeal could be successful on the basis of several things: the introduction of evidence that should not have been admitted because it was obtained in violation of Constitutional or statutory rights of a defendant, or because it did not satisfy the rules governing what evidence should or should not be admitted.
Constructive possession is a legal theory where in order to prove possession by a person, the government need not prove that the individual actually had the item possessed physically on his or her person. If an object that is not tangible, an electronic file for example, is under the dominion for control of a person, that person can be said to “constructively” possess it. While this applies very often with electronic evidence, it also comes into play in drug cases quite often.
It arises when there are search warrants executed of premises whereby the Commonwealth may try to prove possession by the owner or the registered lessee of a residence, for example, when that person may not be present when the material is seized. Constructive possession is a very important concept in proving most drug cases and it is an area where there is a lot of ambiguity in the case law over what does and does not constitute dominion and control. This is an area that will very often arise on appeal and be the source of a lot of Virginia drug appeals.
A Terry stop relates to what we were discussing earlier about reasonable suspicion. There’s a Supreme Court case, Terry v. Ohio, which says that in order to make just a brief investigatory stop of an individual, an officer does not need probable cause, which is the requirement to make an arrest. An officer needs only a reasonable articulable suspicion of wrongdoing. It’s a much lower standard. If the officer can articulate this suspicion, then he or she is allowed to stop and speak with a person to investigate. A line of court cases following this have allowed that contraband evidence including drugs that are discovered in these Terry stops can be admitted as evidence regardless of the fact that they weren’t necessarily the reason for the investigatory stop.
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