Both crimes involve having, being near, or otherwise being in control of contraband, specifically, narcotics or other controlled dangerous substances [CDS], the possession of which is prohibited by Maryland law. It's no secret that the crime of possession with intent to distribute narcotics is treated considerably more harshly than what is sometimes called “simple” possession. The possible sentences escalate quickly from 1 year for “simple” possession, to 5 or more years if an intent to distribute is proven.
There are two ways one can possess an item. Actual possession is shown where a person has actual physical control of an object
- to have it in one's hand
- to have it in one's pocket
- in a purse
- in a wallet
Maryland law provides that constructive possession is demonstrated when one exerts sufficient dominion and control over an object, so as to be said to possess it, even though they don't actually have it on or about their person. A person who has both the ability and intent to exert control of an item is said to constructively possess it, even if it is not in their actual possession. In determining whether or not an item of CDS is or has been constructively possessed, courts have looked looks to a number of factors:
- the physical distance between the individual and the item
- if found in the individual’s house or car, and,
- the mutual use and enjoyment of contraband
So, what is the difference then between simply possessing contraband, drugs or CDS and possessing them with the intent to distribute. Jurors are instructed that there is no “magic” amount over which an intent to distribute must be found. Rather each case is to me be judged on the particular facts and circumstances attendant to it. Courts have looked to things such as:
- Presence of paraphernalia
- Conduct consistent with transfer to another
- Scales or other packaging equipment
- Contemporaneous possession of a lot of cash
in determining if a person had an intent to distribute, or simply had the plan to consume the CDS themselves.