Drug Charge Attorney: How to Counter Possession Charges

• Search and Seizure Challenges

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution of 1974 safeguards people against unreasonable searches and seizures carried out by law enforcement officials. Our state constitution also guarantees a right to privacy and protects against invasions of privacy. If evidence was obtained unlawfully, it may be suppressed and excluded from being used against you during your trial.

Searches are often conducted with, or without, a search warrant.  For a search conducted without a search warrant to be lawful, the prosecution must show that there was probable cause to search and one of the recognized exceptions to the warrant requirement was applicable such as a search incident to a lawful arrest, exigent circumstances were present to justify the warrantless search, or consent to the search was freely and lawfully given by a person with actual or apparent authority to do so.    If a search warrant was issued prior to the search, one fundamental way to challenge search and seizure procedures is to question the validity of the search warrant. Was there probable cause for the search? Did the warrant specifically detail the areas to be searched and the items to be seized? Did the warrant state a lawful basis for the search? Any discrepancies between the language of the search warrant and the actual execution of the search could render the search illegal.

Another avenue to explore is whether consent to search was given voluntarily. Law enforcement officers are obligated to uphold and honor your constitutional rights and treat you with respect and fairness while carrying out their duties. Evidence found through coerced consent may be inadmissible.

Furthermore, the legality of the search itself can be contested. Was the search conducted lawfully? Did the officers exceed the warrant scope or conduct a warrantless search without justification? Any violations of proper search procedures could weaken the prosecution’s case against you.

• Lack of Proof of Possession 

To strengthen your defense against possession charges, your defense attorney scrutinizes the prosecution’s lack of proof regarding your possession of the alleged illegal substances. In drug possession cases, the trial provides evidence supporting the accusation. By challenging their ability to prove that you had possession of the drugs in question, your drug charge attorney can weaken their case significantly.

Here are three ways to challenge the lack of possession proof:

• Chain of Custody

Emphasize any gaps in the chain of custody of the alleged drugs. Inconsistencies or uncertainties in how the evidence was handled from the time of seizure to the presentation in court could cast doubt on its validity.

• Physical Possession

Highlight any lack of concrete evidence showing that you physically possessed the drugs. Suppose the substances were found in a shared space or a location where multiple people had access. In that case, it can be argued that the prosecution hasn’t established your exclusive possession beyond a reasonable doubt.

• Knowledge of Possession

Question whether you were aware of the presence of the drugs. Lack of knowledge about the existence of illegal substances can be a crucial defense in cases where the drugs were concealed or hidden without your awareness. If the prosecution can’t prove your knowledge of the drugs, it weakens the possession charges against you.

• Questioning Intent or Knowledge

Question the prosecution’s ability to prove your intent or knowledge regarding the alleged illegal substances to build a strong defense against possession charges. When facing drug possession allegations, challenging the prosecution’s ability to demonstrate that you knowingly or intentionally possessed the controlled substances can be a crucial strategy. Your defense attorney can argue that you were unaware of the drugs’ presence, had no intention to possess them, or lacked knowledge of their illegality.

One approach to questioning intent or knowledge is to highlight factors such as the location of the drugs, the ownership of the property where they were found, and whether there were multiple individuals with access to the area. Your defense can weaken the prosecution’s case by casting doubt on your awareness or control over the substances. Additionally, inconsistencies in witness testimonies or lack of concrete evidence linking you directly to the drugs can further support your defense.

Your attorney may also explore potential defenses based on your lack of intent or knowledge, emphasizing any circumstances that could indicate innocence. For instance, if the drugs were concealed or hidden in a shared space without your explicit consent, it may be argued that you didn’t have the requisite intent to possess them. By strategically challenging the prosecution’s ability to establish your intent or knowledge, you can bolster your defense and potentially mitigate the charges against you.

• Chain of Custody Disputes

Consider analyzing the chain of custody in your possession case to identify potential disputes that could impact the prosecution’s evidence against you. From seizure to court presentation, the chain of custody records, including who possessed the evidence, disputing the chain of custody can create reasonable doubt in the prosecution’s evidence against you.

Here are three common disputes related to the chain of custody that your attorney may explore in your defense:

• Gaps in Documentation

Your attorney may challenge the prosecution’s case if there are gaps or inconsistencies in the documentation of who possessed the evidence at various stages. Any inexplicable gaps in the chain of custody may question the evidence’s integrity.

• Lack of Proper Sealing or Labeling

Suppose the evidence needed to be sealed or labeled correctly during the chain of custody. In that case, your attorney may argue that this could have led to tampering or contamination, casting doubt on the validity of the evidence presented.

• Unauthorized Handling

Your attorney may investigate whether unauthorized individuals accessed or handled the evidence during the chain of custody process. Any unauthorized handling could compromise the integrity of the evidence and be used to challenge its admissibility in court.

• Substance Testing Errors

Identify potential substance testing errors that could impact your possession case by reviewing the testing procedures and results carefully. Substance testing errors can include mislabeling of samples, contamination during handling, improper calibration of equipment, and human errors in conducting the tests. Mislabeling of samples is a mistake that can lead to mix-ups and inaccurate results.

Contamination during handling, such as improper storage or exposure to external substances, can also compromise the integrity of the samples and affect the test outcomes. Additionally, if the equipment used for testing is not calibrated correctly, it can produce reliable results that may not accurately reflect the presence of a controlled substance.

Human errors in conducting the tests, such as improper techniques or misinterpreting results, can also contribute to substance testing errors. It’s essential to scrutinize the testing procedures and results to identify any discrepancies or inconsistencies that could be used in your defense against possession charges.

To prevent testing errors, your attorney may ask that your expert witness be allowed to independently test the substances to verify its identity, weight, or purity. These independent tests may be crucial to avoid errors or reduce the weight of the illegal substance to a level that is below the threshold for a more severe sentence.  So for example, if the state alleges that the weight of the drug was 28.01 grams, but independent testing shows that the actual weight was 27.9 grams, then a lesser sentence may be applicable to your case.