Fri 21 Oct, 2022 Criminal Defense

How to Beat a Felony Drug Charge

Felony drug charges are serious because defendants who are convicted of felony drug crimes can face long prison sentences. While a person who possesses a small quantity of drugs for personal use is typically charged with a misdemeanor, a person will typically face felony drug charges because he either sold drugs or he possessed such a large quantity of drugs that the implication is that he possessed the drugs with the intent to sell them.

Many defenses may exist in these cases that may result in you beating your felony drug charge. I’m going to go over some of the common issues in felony drug cases that can result in you beating your case. I am a New York City criminal lawyer, so although many of these defenses may exist in all states, I’m speaking from the perspective of a New York criminal lawyer who has seen hundreds and hundreds of drug cases play out in criminal court.

Search and Seizure Violations

With any drug case, there is the question of how the police obtained the drugs from the defendant. Was the defendant unlawfully arrested and searched when the police obtained the drugs? If the drugs were obtained after the police unlawfully seized or searched a defendant, the drugs will be suppressed evidence, meaning that the prosecution will not be able to use that evidence at trial. When key evidence is suppressed, typically the prosecution will dismiss the case, and if they don’t dismiss the case, then they will likely lose their case at trial because they will have insufficient evidence to obtain a guilty verdict.

When a defendant engages in a drug sale with an undercover officer, he gives up his reasonable expectation of privacy in the drugs, so those drugs would not be suppressed. Because of that, drugs that were part of a drug transaction are typically not suppressed. 

However, when a defendant is charged with a felony drug charge for possessing drugs that the police obtained from the defendant’s pockets, bag, vehicle, or home, then the police will need to have had legal justification to intrude inside of the areas where the defendant had a reasonable expectation of privacy. If the police didn’t have legal justification to seize or search the defendant, then the evidence will be suppressed.

Broadly speaking, the police will need a search warrant to enter and search a person’s home. In New York, the police will also need a warrant to search a person’s closed bag. To search a person’s vehicle, the police will need probable cause that there is evidence of a crime. To search a person’s pockets, the police will need reasonable suspicion that a person has a weapon in his pockets. Or, the police may lawfully search a person after they arrest a person when they have probable cause to believe the person committed a crime. To be clear, there are exceptions to all these rules that an experienced criminal lawyer can go over with you after assessing the specifics of your case. Generally speaking, though, if the police seize or search you without the proper legal justification, the drugs they obtain can be suppressed as evidence, which often results in charges being dropped.

Constructive Possession

Another common issue with felony drug cases is whether the defendant actually possessed the drugs. This defense usually comes up when the prosecution has charged a defendant under the theory of constructive possession. With constructive possession, the drugs aren’t actually found in your pockets or “on” you, but the prosecution believes that you had dominion and control over the area where the drugs were found, so they were constructively possessed by you.

A clear example of constructive possession would be if the police execute a search warrant at your home. Let’s say you live with your parents and you have your own room. The police search the whole home, but all the drugs are contained in your room, inside of your dresser. You weren’t at home at the time, but the prosecution says that you constructively possessed the drugs since you alone exercised dominion and control of the dresser inside of your room. This is a pretty clear-cut example, and you wouldn’t have a very strong argument that the drugs weren’t yours. However, if the facts were slightly different, you might have a much better case. Let’s say you share your room with your brother. Or, let’s say the drugs were found inside of the bathroom shared by everyone in the home. Any of these factors could affect whether you had dominion and control over the drugs and consequently whether you constructively possessed them.


Another issue with some felony drug charges is whether the weight of the drugs is accurate. Some drug crimes require that the weight be solely of the actual controlled substance, whereas some charges allow the total mixture to be considered when determining weight. For instance, if you have an ounce of heroin, but it is significantly cut by other agents, you will be charged for the total weight of the mixture, not just the pure heroin. However, with some other drugs, the court can only consider the weight of the actual substance. Whether the weight has been properly established is dependent on the drug and the specific statute you are facing. 


If you are facing felony drug charges for selling drugs, you may have a successful defense if you were merely acting as an agent of the buyer. In other words, you weren’t making any money from the transaction, you were merely helping an acquaintance score some drugs. If you were the actual dealer of the drugs and were merely helping out, you may have a legitimate agency defense.

Need Help?

If you’ve been charged with a drug felony in New York, give me a call for a free consultation. I can examine your case to develop a tailored defense strategy. Contact the office today.