Drug Possession Charges: Common Defenses

Criminal law is heavily centered around the idea of intent. This is true even if you are unmistakably in possession of a controlled substance. Just because you may have been found with drugs on your person does not automatically mean you intended to break the law. Authorities will often try to scare you into believing that you had an illegal item, so you are automatically guilty. This is simply untrue.

Remember that in our system, you are innocent until proven guilty. Regardless of how dire the circumstances seem or how confident the police are, you have the right to defend yourself in court. If you have been charged with a drug possession crime, here are some possible defenses you and your lawyers can use in court.

You Didn’t Know You Had the Drugs

Known as an “unwitting possession” defense, this argues that you were unaware that you were carrying drugs. Oftentimes, people are found with drugs while they are using items that belonged to someone else. Perhaps drugs were found in the car, but it wasn’t your car. Maybe the drugs were in your pants pocket, but you were borrowing those pants from a friend. If you didn’t know you had drugs on you, it is difficult for the prosecution to show your intent to break the law.

The Drugs Were Not Yours

Again, the prosecution has an obligation to show intent. You may have been aware of the drugs, but they may not have been yours. This is called a “lack of possession.” Lack of possession is often applicable with groups of people. The police enter a room and see a brick of cocaine on the table. You are in the room with five other civilians. If that is their only evidence, the authorities have no direct reason to believe those drugs belonged to you.

This defense also works well when the chain of possession is unclear. Perhaps you were home by yourself, and police found narcotics in the kitchen. If you live with other people, you can argue that the drugs did not belong to you. This chain of possession is also effective in landlord/renter relationships. If drugs were found in the home, the police can’t necessarily prove whether the drugs belonged to the property’s owner or renter.

You Were Forced to Carry Drugs

In legal speak, when you are forced to do something it is called “duress.” The illegal narcotics world is full of dangerous people. If you were forced to transport drugs under threat of violence, you can present this evidence in court. Even though you knew you were doing something illegal, you had no choice. This is not an intent to break the law. This is an intent to survive, and you can explain that in your case.

The Police Search Was Improper

Regardless of someone’s intent or the evidence against them, police are obligated to follow proper procedure. When they don’t, the case can be thrown out. Authorities must follow the law to the letter, or they may be guilty of infringing on someone’s rights. Here are some ways that police can break the law, making your case easier to argue.

Breaking the “Plain View” Rule

There are many standards and procedures police must follow when searching a home. The Fourth Amendment ensures that authorities always be justified when entering a property. There are a number of ways police can overstep these bounds, and your lawyer will conduct a detailed investigation into exactly how you were found with narcotics. If the police were out-of-line, this can be used against their case.

Police are sometimes guilty of overstepping the “plain view” rule. Essentially, anything within plain view of the police’s permittable search area can be used against you. For example, imagine the police are inside your home to arrest you for a crime. While there, they see heroine in plain view, right on the coffee table. This would be cause for them to add a drug charge to any other charges.

Police are guilty of breaking the plain view rule when they go beyond the bounds of their warrant. For example, if the warrant allows them to search your garage, they do not have the right to go into the kitchen. If they find incriminating evidence outside the garage, they should not be able to use it against you.

Abuse of Power

Police can abuse their power in several different ways. In some instances, they might surveil you without permission, gathering evidence that should not be admissible in court. In a drug possession charge, overzealous police may plant evidence in your home or on your person. Sometimes they coerce false confessions from people through intimidation. Another tactic is to wear someone down by holding them and questioning them for hours. This is essentially a psychological torture technique that causes someone to falsely confess simply to end the agony.


Often misunderstood, an entrapment defense is complicated. Police can lie to you and pose as criminals. They do not have to tell you that they are police when you question them. Offering to buy or sell drugs is not entrapment. You don’t have to say “yes” to either of those things.

Entrapment happens when police groom you to commit a crime that you wouldn’t normally commit. For example, an undercover officer approaches someone who has no connection to the drug world. The officer tries to convince this person to join a drug selling scheme, and the person says, “no.” The officer keeps trying. They continue to entice the victim with promises of easy money and an inability to get caught. Eventually, they wear this person down, and then arrest them when they say “yes.” This is how entrapment works, and if you were lured into a criminal situation, you can defend yourself with the facts.

If you’ve been charged with possession, we can help you craft a credible defense. Contact us today for a free consultation. Our number is 888-4-ZEN-LAW, and you can reach us online.

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