Justices weigh whether evidence shows dealer knew heroin bag contained fentanyl

At oral argument in Cuffee v. Commonwealth, defense counsel Lauren Bryce urged the court to require the Commonwealth to prove beyond a reasonable doubt that the defendant knowingly possessed each controlled substance charged — here, heroin and fentanyl found together in a single small plastic twist. "If you have to guess between two equally possible outcomes, that's not an inference, that's speculation," Bryce told the justices.

Virginia Tyson, arguing for the Commonwealth, countered that the record supplied circumstantial evidence allowing a reasonable factfinder to infer knowledge: expert testimony that dealers in Chesapeake commonly lace heroin with fentanyl to boost profit, the defendant's status as a seasoned dealer with multiple types of drugs, and the jury's consideration of the evidence. "Adding fentanyl to heroin is a way that drug dealers in Chesapeake maximize their profit," Tyson said.

The argument turned on whether the combination of factors in the record — expert testimony about local dealing practices, the defendant's history and items found on him, and standard investigative evidence such as lab results — is sufficient to conclude the defendant knew the packet contained more than one substance. Defense counsel noted the lab report did not specify how much of the sample was fentanyl versus heroin and emphasized that prior convictions for other drugs (here, cocaine) do not automatically establish knowledge about different substances.

Justices pressed both sides on concrete evidentiary paths. One questioning justice observed that fentanyl mixed with heroin would not be visible or have a distinctive odor and asked how future cases could be proved absent direct statements or phone evidence. Bryce listed possible proofs — phone records, dealer statements, price differences, or expert interpretation of potency warnings — and cautioned that relying on any single factor could amount to impermissible speculation. Tyson said price evidence was not strictly necessary if the total circumstantial picture supports a reasonable inference.

Counsel and several justices discussed precedent the parties relied on — including Young and Cayman — and whether those decisions control when the defendant is a seasoned dealer rather than a casual user. Tyson argued the facts distinguish Young and Cayman and that Garrick and Wilkerson support affirming where the factfinder had evidence to draw the inference. Bryce urged reversal on the ground the trial court erred in denying a motion to strike the element for the dual-substance charge.

The case turns on whether the court will treat the Commonwealth's combination of circumstantial proofs as adequate to show knowing possession of multiple substances in a single packet, or whether the court will require clearer, direct indicators that the defendant knew of the fentanyl component. The court took the argument and indicated it will issue an opinion at a later date.