Does It Help Your Defense If The Defendant Was Caught While Selling To A Civilian Versus An Undercover Agent Or Confidential Informant?
A lot of times, when a dealer sells to a civilian, they don’t arrest the civilian. The civilian will leave the area, and that’s when law enforcement will arrest the dealer. But with the civilian not in the area, they lose the end of the sale, like the fact that they’d find the same color bag on him. When you can get a civilian and you match up that bag with the ten bags that are on the guy over here, you can make the inference that he’s sold to this individual. Similarly, if you see a hand-to-hand and then this guy has the same color of bag, boom, you got him. If you let the civilian get away and arrest the dealer, he might say, “Those seven bags are mine. I use them for personal use. I didn’t sell to that guy—he just owed me money.”
Now, law enforcement is missing an important part of this transaction and the proof that this guy was selling. For whatever reason, they let civilians go all the time, and that means getting arrested while selling to a civilian is easier to deal with. Selling to an undercover agent might be the most serious thing you’re looking at because they’re trained police officers who will go into court, put their hand up, and swear that they bought drugs from you. One of the only things you can do to challenge that is ask them to reveal their undercover agent. They might not want to reveal the person because they prefer to leave that undercover agent in place to get to a bigger source or a bigger dealer, especially if you’re just a street-level narcotics dealer. If you force them to reveal the identity, they might dismiss the case instead. I’ve used this tactic successfully when defending low-level dealers.
The same goes for a confidential informant, CI. They do not want to give the identity of these people who are helping them. It’s dangerous on the street, so they’re very scared of their names getting out. Law enforcement will try to make it to where they don’t need the informant in a prosecution. If they use an undercover or a CI to make an undercover buy and then go make three more, then they get a search warrant to search the house, and when they have that, they don’t need the confidential informant anymore. One way to defend these cases is to try and force them to reveal this confidential informant, which they won’t want to do. It forces them to look for ways where they don’t have to do so.
I often get questions about lab results in New Jersey and if there are ways to challenge them. One thing that’s apparent right now is New Jersey is way behind in their lab evaluations. The New Jersey State police has their own lab, but they are months and months behind. I can try to negotiate these cases more favorably for my clients when the state doesn’t have a lab report. If push comes to shove, they will eventually get one before trial, but they’ll give you a better deal for your client if you can say, “Hey, you don’t have a lab report right now. We all know what it’s supposed to be, so let’s work something out.”
In a lab result, the weights may differ. They are allowed to weigh certain packaging so that half an ounce of cocaine with packaging might be up to an ounce, and an ounce gets you a different amount of time than slightly under a half ounce. I use the weighing and how things are packaged for negotiation. If it’s right at the cutoff between a third-degree and second-degree amount, I can go to the prosecutor and say, “Look, this is just over the higher amount, and it has all this packaging, so it’s really a lesser amount. We should really be looking at the range below that.” That could help a defendant because weight is often used to determine the level of the crime and also whether it’s for personal use versus possession with intent to distribute. You don’t see many heroin addicts who’re able to keep a half ounce of heroin safely in their home. They usually do it all. It’s more economic to buy an amount and ration it out for the month, but most people don’t have the discipline to only do a certain amount each day. That’s why when you see a large amount of cocaine or heroin or whatever the drug is, normally the weight can tell you whether someone’s a dealer or a user.
If you’re arrested, the kind of money you have on you will also be important in determining your charge. A user rarely has more than a few hundred dollars on them, whereas the dealer really has less than a few hundred dollars on them. This gives you an indication whether they’re the dealer or whether it was personal use, as does the packaging. You rarely see an addict with 20 bags on them because it won’t last that long before they use it, whereas a dealer will have all the bags neatly on their person.
Your lifestyle will also be important. It’s pretty easy to figure out who the users of these drugs are. Most of these dealers don’t use the drugs, nor do they look like they use the drugs. They’re dressed nicer, they have nicer cars, they’re living the lifestyle, and they’re not using drugs. They just seem a little sharper than the people they’re dealing with. A police officer’s observation can also differentiate between personal use and possession with intent to distribute. Did they see ten people walk up to this person on the corner? That’s an observation that the cops can make to show that you’re a dealer. And finally, the paraphernalia that you’ll find on you plays a part. Did you have scales, a box of baggies, or anything to show you’re not carrying for personal use?
These are all the ways you can differentiate between personal use and possession with intent to distribute. For us, it’s important that we avoid letting someone enter a plea to possession with intent because the second possession with intent calls for a mandatory extended term in New Jersey. That usually means on the third-degree offense, if you have mandatory extended term, your sentence will be at least five years, with a stipulation for mandatory parole disqualification for about two years. If you’re going to take a plea, the difference between possession and possession with intent becomes very important.