Drug Possession Defenses

If you're charged with possession of drugs (also known as “controlled substances"), either for personal use or with intent to sell, a criminal defense attorney can determine which defenses might apply to your case. Federal laws and state laws alike address drug possession and drug trafficking.

Some defenses challenge the stated facts, testimony, or evidence in the case. Some challenge the drug possession laws themselves. Others target procedural errors. Some defendants challenge drug possession charges on the basis of an affirmative defense, meaning they introduce their own evidence showing that they were acting legally or that the prosecution otherwise doesn't have a case. At issue may be the way the case was charged by the prosecutor — e.g., that the amount of drugs should be a misdemeanor, not a felony drug offense — or the way police officers acted at the time of the arrest.

This article discusses drug possession defenses, ranging from rare defenses to more common strategies such as attacking the prosecution's case or an affirmative defense. All the defenses aim to help someone charged with possession of a controlled substance to avoid ending up with a drug conviction. That could mean a criminal record and possibly jail time.

Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution provides citizens protection from the government. Only under certain circumstances is it legal for authorities to search a person's body or property. Search and seizure challenges are common in drug possession defense cases.

Illegal substances found in "plain view" may be seized and used as evidence in a drug case. An example of plain view might be controlled substances or drug paraphernalia sitting on a car's dashboard while an officer conducts a legal traffic stop or falling out of someone's pocket when they are removed from a car. Another example would be a cannabis field that is visible to a plane overhead.

Consider the possibility that a police officer pries open a car's trunk — without permission — and finds illegal drugs. Perhaps a police officer enters a home without permission or probable cause to do so. Or, for example, a low-flying drone is flown over a specific location and photographs a hidden marijuana field. These are a couple of examples of searches that would be illegal without a search warrant.

If, through illegal means, authorities find evidence such as Xanax or other prescription drugs, oxycodone, or cannabis (in states where it is still illegal), the court will exclude that evidence at trial. Because the evidence found in an illegal search can be hugely important to the prosecution's case, the government will often drop its criminal case if police violated your Fourth Amendment rights.

Drugs Belong to Someone Else

Criminal defendants facing drug charges often want to claim that the drugs do not belong to them or that they had no idea the drugs were in their possession. But this argument may not fly.

Police do not necessarily have to find drugs on your body or directly in your possession for you to be convicted on drug possession charges. Instead, prosecutors must usually only show that you had control of or access to the drugs. This is called constructive possession.

At trial, a defense attorney might argue there is a reasonable doubt that you knew about the drugs. However, this can be difficult if, for example, a passenger in your car was using drugs just prior to or at the time of your arrest. That is why it is a good idea to speak to a criminal defense lawyer before you make any claims or arguments to the police. There's a high potential of making things worse.

Crime Lab Analysis

Not all supposed evidence is what it looks like. Just because it looks like cocaine or LSD or methamphetamine 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. A criminal defense lawyer can raise questions about errors or discrepancies in the crime lab analysis report. If there are issues, the defense can require the crime lab analyst to testify at trial and prove their methods as well as the type of drug in the results (Schedule II, Schedule III, Schedule IV, etc., under the Controlled Substances Act).

Chain of Custody Problems

Another drug possession defense is that the drugs are missing. After drugs are seized during an arrest or upon execution of a search warrant, police usually secure them in an evidence room or locker. At trial, a defense attorney can challenge whether the drugs presented as evidence are in fact the ones taken from the defendant (and not from a different case).

This is often referred to as an attack on the chain of custody. Other chain-of-custody attacks involve the accusation that one of the police officers who handled the drugs throughout the course of an investigation did so improperly. The likelihood that such a tactic will succeed depends on how many officers handled the drugs, along with how well the police create and maintain records of such activity.


While law enforcement officials are free to set up sting operations, entrapment occurs when officers or informants induce a suspect to commit a crime they otherwise would not have committed. If an undercover officer scores drugs from or sells drugs to a suspect, that action is not necessarily entrapment.

When authorities go so far as to harass or threaten someone into committing a drug crime, entrapment is a possible defense. This is a complicated matter of the law that a drug crime defense lawyer will be able to help navigate.

Medical Marijuana and Other Exceptions

The medical use of cannabis is never a defense for federal drug possession charges but might apply in states where medical marijuana has been legalized. In an increasing number of states, simple possession of marijuana is now legal. But, again, that won't matter with federal possession crimes or criminal charges.

Need Help With Drug Possession Defenses? Contact an Attorney

If you're facing drug possession charges or felony charges, you may have defenses available to you that aren't immediately apparent. There are also other defenses not discussed here that may apply to your case.

For example, the law generally assumes you are selling drugs if you have more than a certain amount of the controlled substance in your possession. However, you can argue that the drugs are for personal use, which could potentially reduce the penalties. A judge may add drug treatment or drug court as part of your sentence instead of prison time, especially if it is a first offense.

Other potential arguments include claiming you were under duress or threatened by others or had no idea what type of drug was found in your home or vehicle.

A criminal defense attorney can often reveal holes in the prosecutor's case. If you're dealing with charges for a drug crime, it's in your best interest to contact an experienced, local criminal defense attorney for legal advice as soon as possible. They can dig into your case and determine how details of criminal law may make a difference.

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