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6 Defenses Against a Drug Possession Charge


Drug possession seems like a pretty cut-and-dry criminal charge. You were found with drugs; you got arrested. The police will certainly try to convince you that you’ve been caught red-handed and there’s nothing you can do.

The truth is, simply being in possession of an illegal substance is more complicated than that. There could be several reasons why you were found with the illegal substance, and a lot of them may not be your fault. If you’re facing possession charges, you don’t need to roll over and accept them. You deserve your day in court, and you have the right to tell your side of the story. Here are some common defenses against a drug possession charge.

Unwitting Possession

One thing that the prosecution, the ones accusing you in court, must prove is that your actions were deliberate. They have to show intent. If you were found snorting cocaine, you likely intended to break the law by doing drugs. Just having a bag of cocaine in your possession, however, isn’t enough to prove intent. Why was is there? What did you plan to do with it? Maybe you had no idea the drugs were on you.

Being unaware that you were in possession of a controlled substance is called “unwitting possession.” Let’s say you’re pulled over, and the police find a small bag of meth in the back seat. For them, it’s reason enough to make an arrest. You were driving, and there were drugs in the car. What if, however, it was not your car? Maybe you borrowed it from a friend while your car was being repaired. Even if the car belonged to your spouse, that’s not a clear connection from the drugs to you. Borrowed items are a common theme in an unwitting possession defense. There was heroine in your jacket? The clothing belonged to your cousin.

You could also be the victim of someone else’s drug crimes. Perhaps you were in a bad area of town, well known for its drug activity. Police found you with a substance in your back pocket, but you know it wasn’t yours. Maybe the drugs were planted on you. This situation is not as fantastic as it seems, and it has been successfully argued in court.

Lack of Possession

Sometimes the police find something near you but not on you. It is the justice system’s responsibility to show the judge that the drugs belong specifically to you. “Lack of possession,” as a defense, makes this claim: Even if the drugs appear to be connected to me, they are not mine. This is slightly different from an unwitting possession defense. “Unwitting” means you had no idea that drugs were even around you. “Lack of possession” connotates that whether or not you were aware of the drugs, they didn’t belong to you.

One way to use this defense is when there are groups of people involved. Five friends are out on the town and get pulled over. Contraband sits directly on the arm rest. You are sitting in the back right seat, and you’re the one arrested for possession. What reason do the cops have to claim that the controlled substance belongs to you? Even within the home, lack of possession is a valid defense. The police find you at home alone, and there are bricks of cocaine on the coffee table. What if you share that living space with two other people? Whether the other tenants are home or not makes no difference. Prosecution needs to prove that the drugs belong to you and not your roommates.

Police may try to use indirect possession chains to accuse you. You rent a house to a tenant, and police find drugs inside. Now, they want to accuse you, not your renter, of possession. That’s when you need to employ a lack of possession defense.


When you are being forced to do something, you could say that you were doing it under “duress.” The illegal drug business is ugly. It’s a dangerous world full of dangerous people. Whether you meant to or not, you may have found yourself among people in that world. Law enforcement will always advise you not to do favors for people in organized crime, because they will keep asking for more until they force you into a bad situation. It is possible that, yes, you knew you had drugs on you and, yes, you knew you were committing a crime. It’s also possible that you had no choice.

To prove duress in court, your lawyer must show that you were in immediate danger. You were given a direct order with a threat attached. The bad guy put a gun to your head and said, “deliver this package, or you’re dead.” Maybe they threatened your family or a close friend. An immediate danger defense is used when you were in extreme circumstance like this.

Duress defenses don’t always need to be so severe. There are more subtle ways that a person can be coerced. Maybe a large, muscular man approached a 90-pound woman. He got well into her personal space, smiled, and simply said, “Hey, take this down the road for me.” This woman can’t really prove an immediate threat, but there was certainly an implication of physical danger. This is an example of a duress defense based on a “reasonable fear.”

Illegal Search and Seizure

Police need a warrant or strong probable cause to search your property. This is assured by the Fourth Amendment. When they overstep their bounds, they may be guilty of an illegal search and seizure. No matter what the police find, illegally obtained evidence can be thrown out in court. The benefit is this: The jury won’t see evidence obtained through illegal means.

“Plain view” is an important aspect of search and seizure. If police enter your home to arrest you for a robbery, and they see a meth lab right in your living room, they have grounds to charge you for a drug crime. However, if they come in, start wandering around the house, and find a meth lab in your garage, that evidence should be inadmissible. They had no reasonable suspicion to investigate any part of your home for anything else. Warrants are meant to be tied to their specifically stated areas. Maybe the cops believe that you are operating a drug ring out of your shed. If the warrant allows them to search your shed, no one should be entering the actual home. If police are allowed to search your bedroom, they can’t start poking around in the bathroom. Without “plain view” or evidence pointing to another part of the home, the police need to stay within their stated boundaries.

Police Abuse of Power

Much of the TV show “The Wire” focuses on the cops getting warrants for their wire taps. There’s a reason for that. Police need permission to listen to your conversations. In fact, they need permission for many of their investigative techniques. Without going through the correct channels, law enforcement may be abusing their power.

Abuse of power can take several forms as a criminal defense strategy. Authorities could have been surveilling you without authorization, as we mentioned. Maybe they planted the drugs on you. Interrogation methods themselves can be abusive. Police may have kept you detained for longer than they should have, bombarding you with the same questions for hours. This is an attempt to force a confession out of you. The police hope that you will break under the pressure and tell them what they want to hear.

Like illegal search and seizure, it may not matter if you actually committed the crime or not. If you were caught or you confessed through illegal methods, that evidence can be thrown out of the trial. Your lawyer should be rigorously investigating the police’s methods regarding your arrest. If the cops weren’t behaving morally, that should be brought up in court.


Entrapment is an often-misunderstood term. Just because the police set you up, that doesn’t necessarily mean they are guilty of entrapment. Police have the power to lie to you when building their case. They can make promises they don’t intend to keep; they can pretend to be someone they’re not; and they can be dishonest when you ask if they are a police officer.

When people on “To Catch a Predator” pose as teenage girls, that is not entrapment. If an officer poses as a drug buyer, that’s also not entrapment. Your behavior is the key to whether or not you were entrapped. For example, just having an officer posing as a young girl isn’t entrapment. You can simply ignore them, or you can report them to the chat service. The same is true for drug crimes. If someone asks you to buy drugs, you can just say no.

Entrapment, as a valid legal defense, is a situation where the police groom you into committing a crime that you normally wouldn’t. Imagine you’re a banker who makes good money. You have no history of criminal behavior, and you don’t associate with criminals. One day, you meet someone who tells you they have an opportunity to make a lot of money. After a few conversations, you find out it’s drugs, and you say no. This person, however, doesn’t stop. They keep showing you all the different ways that you’ll be completely safe. There’s no way you’ll get caught, they tell you, and you don’t even need to do much. After weeks of grooming, convincing, and promising you vast sums of money, they get you to agree. Then you find out the person was a cop all along, and you get arrested. It sounds far-fetched, but it happens. Entrapment, given the right set of circumstances, is a completely valid defense in a court of law.

The Law Offices of Jacqueline Goodman is here to defend citizens against drug possession charges. If you’re facing legal trouble, call us today at (714) 266-3945 or contact us online. Initial consultations are free, at no risk to you.

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