Four Defenses to drug possession that you must know about if you’re charged in Texas

No two cases are exactly the same. And any criminal defense lawyer worth his salt is going to review all evidence carefully in every case that he’s involved in to find any possible defense. Usually, aside from reviewing the offense report and any video footage, this begins with a close look at a document called the charging instrument. In a misdemeanor this could be called a complaint or information. In a felony it could be a complaint or indictment.

But generally speaking, in drug possession cases (possession of anything illegal, really), there are four main potential defenses that a person charged with possession of a controlled substance in Texas may be able to raise, depending on the circumstances of their case. Some common defenses to drug possession charges include:

1. Lack of knowledge: In order to be convicted of drug possession, the prosecution must prove that the person knew that they were in possession of a controlled substance. If the person did not know that they were in possession of a controlled substance, they may be able to raise the defense of lack of knowledge.

For example, if a person is charged with possession of a controlled substance after the police find drugs in their car, they may be able to raise the defense of lack of knowledge if they can show that they did not know the drugs were in the car. This could be the case if the person did not own the car or if someone else placed the drugs in the car without the person’s knowledge.

2. Lack of possession: In order to be convicted of drug possession, the prosecution must prove that the person had control or ownership (“care, custody, control, or management”) of the controlled substance. If the prosecution lacks enough evidence to prove beyond a reasonable doubt that the accused person had control or ownership of the controlled substance, the accused may be able to raise the defense of lack of possession.

For example, if a person is charged with possession of a controlled substance after the police find drugs in their home, they may be able to raise the defense of lack of possession if they can show that they did not have control or ownership of the drugs. This could be the case if the drugs belonged to someone else who was visiting the person’s home or if the person did not have knowledge of the drugs being present in the home. As you can see, there’s a lot of overlap between lack of knowledge and lack of possession. The difference is very subtle and the facts that support each defense are often the same.

Another important thing to understand is that under Texas law, possession of a controlled substance occurs when a person has actual or constructive possession of a controlled substance. Actual possession occurs when a person has the controlled substance on their person, such as in their pocket or purse. Constructive possession occurs when a person has control or ownership of a place where the controlled substance is found, even if the person is not physically in possession of the controlled substance at the time it is found.

For example, if two people are in a car and the police find drugs in the car, both people could potentially be charged with possession of the drugs, even if only one person had actual possession of the drugs. This is because both people had constructive possession of the drugs, as they had control or ownership of the car where the drugs were found.

3. Illegal search and seizure: Under the Fourth Amendment to the U.S. Constitution, police officers are generally required to have a warrant or probable cause to search a person or their property. If the police conducted an illegal search and seizure, the evidence obtained during the search may be excluded from the case, which could result in the charges being dismissed.

One way this defense can be raised in the context of an illegal detention, which occurs when a person is detained by law enforcement without reasonable suspicion or probable cause. Under the Fourth Amendment to the U.S. Constitution, police officers are generally required to have reasonable suspicion to detain a person. Reasonable suspicion is a lower standard than probable cause, but it must be based on specific, articulable facts that would lead a reasonable person to believe that the person being detained has committed, is committing, or is about to commit a crime.

For example, if a police officer pulls over a car for failing to signal a lane change, but the driver can show that he committed no traffic infraction at all, the driver may be able to argue that the detention was unlawful because it was not based on reasonable suspicion of a crime (failing to signal a lane change). If the officer did not have reasonable suspicion to detain the driver, the evidence obtained during the detention, such as drugs found during a search of the car, may be excluded from the case as “fruit of the poisonous tree,” which could result in the charges being dismissed.

Another way of employing this defense is to challenge the search of the car. For example, say a police officer pulls over a car for speeding and asks the driver to step out of the car. Without any further justification, the officer searches the driver’s car and finds drugs. The driver is then charged with possession of a controlled substance.

In this example, the driver may be able to raise the defense of illegal search and seizure by arguing that the officer’s search of the car was unlawful because it was not based on probable cause or a warrant.

Under the Fourth Amendment to the U.S. Constitution, police officers are generally required to have a warrant to search a person or their property. There is an exception to the warrant requirement for cars, but police must still have probable cause that would have supported a warrant in order to search a vehicle. If the officer did not have probable cause or a warrant to search the car, the evidence obtained during the search may be excluded from the case through something called the “exclusionary rule”, which would almost certainly result in the charges being dismissed.

4. Entrapment: Entrapment occurs when a law enforcement officer or government agent coerces or tricks a person into committing a crime that they otherwise would not have committed. If a person can show that they were entrapped, they may be able to raise the defense of entrapment.

For example, if a law enforcement officer poses as a drug dealer and offers drugs to a person who has never purchased drugs before, and the person then buys the drugs, the person may be able to raise the defense of entrapment. This is because the law enforcement officer’s conduct likely induced the person to commit a crime that they otherwise would not have committed. (See Tex. Penal Code Sec. 8.06: “It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”)

in the case of Ex parte Shaw, 805 S.W.2d 592 (Tex. Crim. App. 1991), the Texas Court of Criminal Appeals held that the defense of entrapment was available to a person charged with possession of a controlled substance, as long as the person could show that they were not predisposed to commit the crime and that the law enforcement officer’s conduct was the cause of the crime.

It is important to note that the defense of entrapment is not a guarantee of acquittal, and the specific evidence needed to establish this defense will vary based on the circumstances of the case. If you have been charged with possession of a controlled substance in Texas and are considering raising the defense of entrapment, it is important to consult with a qualified criminal defense lawyer to understand your rights and options.

It’s also important to note that these are just a few examples of potential defenses to drug possession charges, and the specific defenses available in a particular case will depend on the circumstances of the case. If you have been charged with possession of a controlled substance in Texas, it is important to consult with a qualified criminal defense lawyer to understand your rights and options.