If you're charged with possession of drugs, either for personal use or with intent to sell, a criminal defense attorney can determine which defenses might apply to your case. Some defenses challenge the stated facts, testimony or evidence in the case; others target procedural errors, and some defendants challenge drug possession charges on the basis of an affirmative defense.
This article discusses drug possession defenses, ranging from the rare defenses, to the more common and familiar ones.
Unlawful Search and Seizure
The Fourth Amendment to the U.S. Constitution guarantees the right to due process of law, including lawful search and seizure procedures prior to an arrest. Search and seizure issues are common territory for drug possession defenses.
Illicit drugs found in "plain view," such as a car's dashboard after a legal traffic stop, may be seized and used as evidence. But drugs found in the trunk of a car after prying it open with a crowbar, (assuming the suspect didn't give permission) can't be entered into evidence. If the defendant's Fourth Amendment rights were violated, then the drugs can't be used at trial and the charges typically are dismissed.
Drugs Belong to Someone Else
A common defense to any crime charge is to simply say you didn't do it. The drug possession equivalent is to claim the drugs aren't yours or that you had no idea they were in your apartment. For instance, a skilled defense attorney will pressure prosecutors to prove that the joint found in the car belonged to their client and not one of the other passengers.
Crime Lab Analysis
Just because it looks like cocaine or LSD doesn't mean it necessarily is. The prosecution must prove that a seized substance is indeed the illicit drug it claims it is by sending the evidence to a crime lab for analysis. The crime lab analyst then must testify at trial in order for the prosecution to make its case.
Another drug possession defense is that the drugs are missing. Similar to the need for crime lab analysis, prosecutors who lose or otherwise lack the actual drugs risk having their case dismissed. Seized drugs often get transferred several times before ending up in the evidence locker, so it should never be assumed that the evidence still exists during trial.
Drugs were Planted
This may be difficult to prove, since a police officer's sworn testimony carries a lot of weight in the courtroom; other officers may be reluctant to blow the whistle on a fellow officer. But your attorney can file a motion that, if approved by the judge, requires the department to release the complaint file of the given officer. This file contains the names and contact of information of those who made the complaints, who can then be interviewed by your attorney or a private investigator.
While law enforcement officials are free to set up sting operations, entrapment occurs when officers or informants induce a suspect to commit a crime he or she otherwise may not have committed. If an informant pressures a suspect into passing drugs to a third party, for example, then this may be considered entrapment. As a rule of thumb, entrapment occurs where the state provides the drugs in question.
Medical Marijuana Exception
The medical use of marijuana is never a defense for federal drug possession court but may be in states where medical marijuana has been legalized. States with such exceptions to marijuana laws typically require a doctor's signed recommendation. But some of those states also provide for an affirmative defense by those arrested on marijuana possession charges who are able to show clear and convincing evidence of medical necessity.
Need Help with Drug Possession Defenses? Contact an Attorney
If you're facing drug possession charges, you may have defenses available to you that aren't immediately apparent. Whether the police collected testimony without reading your rights, or whether the prosecutors have failed to preserve incriminating evidence, a criminal defense attorney will often reveal the hole in the prosecutor's case. If you're dealing with a criminal matter, it's in your best interest to contact an experienced, local criminal defense attorney as soon as possible.