There are six basic defenses to drug conspiracy crimes:
There was No Agreement or No Illegal Agreement – This is a straightforward defense that asserts the government cannot prove the existence of a conspiracy. No agreement exists, for example, where the individuals involved do not share a common goal and are not working together. Similarly, there may be an agreement between multiple people to accomplish something, but if the objective is not illegal, the agreement is not a conspiracy.
The person charged did not intend to join the agreement – Like the defense that there was no agreement, this defense attacks the government’s case as lacking evidence. For there to be a conspiracy, one must intentionally join the conspiracy. This means taking an “overt action” to participate in the conspiracy. Just having quantity of drugs does not prove intent. per se. It may be evidence, but there needs tobe more; that the possession of the quantity was for further distribution.
The person charged was involved in a different conspiracy – This may sound counterintuitive, but a person has a valid defense if the conspiracy they are involved in is not the conspiracy they were charged with; such as a different drug or even parapheelia. The government may accuse a person of distributing heroin, but if it was actually coccaine,the charge may not stick.
I Quit Plus More– Withdrawing from the Conspiracy – Withdrawing from a conspiracy is a defense to a conspiracy, but it’s not enough to simply throw one’s hands up and say: “I quit.” In order to succeed with this must show that that an affirmative action to stop participating in the conspiracy was commenced, that they informed your co-conspirators of their withdrawal, and that they withdrew before the conspiracy was complete. In some instances, a person withdrawing has to take steps to prevent the conspiracy from accomplishing its criminal objective; before the conspiracy’s act is reached -- such as by notifying law enforcement.
Entrapment: The cardinal rule of law is that the government must play by the rules and therefore cannot initiate the criminal activity. The person charged was entrapped by law enforcement is a good but challenging defense to a conspiracy Entrapment occurs when law enforcement essentially “traps” a person by convincing them to commit a crime they ordinarily wouldn’t have committed. This could be the initial solicitation of criminal activity. The key to an entrapment defense is to show that the person wouldn’t have committed the crime but for the government’s actions.
There was an illegal search or interrogation – The U.S. Constitution protects us from “unreasonable searches and seizures.” Under the Fourth Amendment and to the states by the Fourth and Fourteenth Amendments, combined. This means law enforcement generally has to have a valid search warrant before wiretapping a person’s phone, searching their house for drugs, or pulling them over to search their car. This also means law enforcement has to read you your Miranda rights if you are arrested, including your right to remain silent and not incriminate yourself. If drugs were discovered in a home, the attorney will have to verify that the search was based upon a valid search warrant or other probable cause or consent. If the police violated a person’s rights, a judge may be required to suppress any evidence that was seized.
Lack of Possession – What if the person charged for the possession with intent to deliver, did not possess the drugs; physical or constructively. If others are accused on conspiring with that person, then they may have the defense of that person who did not have possession.