Pipe with Residue Insufficient to Support Possession with Intent to Distribute Charge

The Court of Appeals of Virginia recently reiterated that possession of drug paraphernalia (in this case a pipe) with the residue of drugs on it is insufficient by itself to support a conviction for possession with intent to distribute. The result is unsurprising, but serves as a reminder of the importance of having a skilled attorney on your side.

In the unpublished opinion of Kincaid v. Commonwealth of Virginia, 1623-15-3, the Court of Appeals considered Mr. Kincaid’s challenge to the legal sufficiency of his conviction for possession of methamphetamine with intent to distribute. At trial, the only evidence of methamphetamine introduced was the residue recovered from a glass pipe. The glass pipe was found in Mr. Kincaid’s vehicle after the Sheriff asked him if there was “anything illegal” in his vehicle and he responded that “there may be an old pipe in the green bag” that was in the passenger seat. The pipe was recovered, tested, and found to have methamphetamine on it. The Sheriff testified that the amount of residue found on the pipe was not a quantity that was usually bought or sold. That is, he agreed that it wasn’t an amount that would normally be distributed.

Despite this, Mr. Kincaid was convicted of possession with intent to distribute.

On appeal, the Commonwealth and Mr. Kincaid agreed that the case was controlled by Stanley v. Commonwealth, 407 S.E.2d 13, 14-15 (1991). In Stanley, the Court explained that possession with intent to distribute is a crime where the possession of the drug and the intent to distribute must occur at the same time. (Lawyers call this concurrence.) When you catch someone with just the residue of a drug on a pipe, the small quantity itself suggests that there is not intent to distribute. Accordingly, you can’t convict that person of “possession with intent to distribute” because you haven’t caught them at a point when they have a enough drugs to “distribute.”

When applied to Mr. Kincaid’s case, this principle required that his conviction for possession with intent to distribute be set aside. The mere residue of methamphetamine was not sufficient to support his conviction of possession with intent to distribute. Mr. Kincaid was not off the hook totally, however, because his admission that the pipe was his along with the drug residue was enough to legally support a conviction for the lesser included offense of possession of methamphetamine. The Court remanded the case for a re-trial on possession of methamphetamine.

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