Skip to Content

5 Types of Drug Possession Defenses


Just because you have been arrested for drug possession doesn’t mean that you are guilty. The first step to take after an arrest for a drug crime is to obtain legal representation from a skilled criminal defense lawyer, who can help you determine which defenses might apply to your case. While some defenses question the evidence, testimony, and stated facts in a criminal case, others focus on procedural violations.

The following are the most common defenses to drug possession charges:

  1. Illegal search and seizure – We are all given the right to due process according to the Fourth Amendment of the U.S. Constitution, which includes protection from unlawful search and seizure. Unless the drugs were found in plain sight, law enforcement must obtain your consent or a search warrant to check the contents of your home or vehicle. If the police do not have probable cause or a warrant to perform a search, any evidence collected is deemed inadmissible at trial and cannot be used against you.
  2. The drugs are not yours – The “unwitting possession” defense means that you cannot be found guilty of drug possession if you were not aware that the drugs were in your possession. For instance, if you borrowed a car from a friend and upon getting pulled over by law enforcement, they find illicit substances in the center console. If you were unaware of the drugs in the center console, then you cannot be held accountable for actual drug possession if you police later catch you with them. Additionally, a “lack of possession” defense can occur if there are several people in the car during a traffic stop or if your roommate consents to a search of your home. Since the drugs could belong to multiple parties, it can be difficult to accuse just one person of drug possession.
  3. Crime lab analysis – Sometimes appearances are not what they seem. Just because the substance in question looks like a drug doesn’t mean it necessarily is one. Confiscated drugs are often sent to the crime lab for further testing. The crime lab analysis will then present the results for the testing to the court on behalf of the prosecution. If the test results prove that the alleged drugs weren’t actually drugs, your entire case could be dismissed.
  4. The drugs are missing – From the crime scene to the lab, then to the evidence locker, and eventually to the courtroom, there is plenty of opportunities for the evidence to get lost. If the drugs from the scene are not presented in the trial, then there is no case. Your lawyer will ensure the prosecution can produce the actual drugs in court.
  5. Abuse of power by the police – While unlawful search and seizure are considered an abuse of power by law enforcement, another common form is planting evidence during a criminal investigation. Another form of abuse of police power is entrapment, which means an officer or informant induced you to commit a crime that you otherwise may not have committed.

If you have been charged with drug possession in Milwaukee, our experienced criminal defense lawyer at the Law Offices of Christopher J. Cherella can help you get the best possible outcome in your case. Contact us and schedule a free consultation today.

Share To: