If the State of Nebraska has filed charges against you for possession of a controlled substance, it is in your best interest to consult with an experienced criminal defense attorney as soon as possible to ensure that your rights are protected and to discuss possible defense strategies. In the last several decades, it has become increasingly problematic to have a criminal conviction on your record, particularly a drug-related conviction. Although every criminal prosecution is unique, a Nebraska drug defense attorney discusses some common defenses for possession charges that might be used to help you avoid a conviction in your case.
Nebraska Law – Possession of a Controlled Substance
Nebraska Revised Code section 28-416(3) governs possession of a controlled substance other than marijuana, reading as follows:
“A person knowingly or intentionally possessing a controlled substance, except marijuana or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(25) of Schedule I of section 28-405, unless such substance was obtained directly or pursuant to a medical order issued by a practitioner authorized to prescribe while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony.”
The Nebraska Revised Code Sections 28-416(11) et seq. govern possession of marijuana in varying amounts, all beginning with “Any person knowingly or intentionally possessing marijuana weighing …”
If you were arrested and charged with possession of a controlled substance, the defense strategies available to you will depend, to a large extent, on the facts of the case. Specifically, where the controlled substance in question was found will be important. One defense that may be available regardless of whether the drugs were found on your person or not is to challenge the legality of the search and seizure that resulted in your arrest. The U.S. Constitution protects us against unreasonable searches and seizures by requiring a law enforcement officer to first obtain a warrant based on probable cause before conducting a search. Although the warrant requirement has been watered down by the courts over the years, there are still safeguards in place to protect you against an illegal search and seizure. For example, if a law enforcement officer encounters you walking down the street, he/she cannot randomly conduct a full-blown search of your person. Instead, any search is limited to a “pat down” of your outer clothing and a seizure may only occur if it is readily apparent that the item to be seized is contraband or a weapon. If the search was potentially conducted illegally, your drug defense attorney can challenge the search. If the court agrees that is was an illegal search, any evidence seized as a result of the search is inadmissible at trial.
If the controlled substance involved was not found directly on your person, you may be able to use that fact as part of your defense. The State will have to rely on a constructive possession argument to try and convict you. Constructive possession is intended to cover situations wherein the police believe contraband belongs to an individual but was not found on the individual’s person. Defining the term, and explaining when and how it applies, has been an ongoing challenge for law enforcement officers, attorneys, legal scholars, and even judges. The Supreme Court of the United States has even said: “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 ). That ambiguity can work for, or against, a defendant. Despite the fact that a universally accepted definition for “constructive possession” remains elusive, the most widely accepted definition requires the State to prove that the defendant had “knowledge of the item in question and had the intent to maintain dominion and control over the item.” Because constructive possession is never as strong an argument as actual possession, it often provides an avenue for a winning defense that could prevent you from being convicted.
Contact a Drug Defense Attorney at Petersen Law Office
If you have been charged with possession of a controlled substance in the State of Nebraska, consult with an experienced drug defense attorney as soon as possible. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Latest posts by Tom Petersen (see all)
- How Can the State Prove I Was Dealing? - Friday, April 12, 2019
- Top 3 DUI Defenses - Friday, April 5, 2019
- Can I Use Deadly Force to Defend Myself in Nebraska? - Friday, March 29, 2019