Transportation & Sale of a Controlled Substance Defenses - Health and Safety Code Section 11352
Motion to Suppress Evidence-Penal Code Section 1538.5
A defendant can file a motion to suppress evidence whenever it is believed that evidence was taken from your person or property unlawfully. The general theory behind a motion to suppress is that the prosecution should not benefit from evidence that law enforcement took from you illegally. There are many legal grounds for bringing a successful motion to suppress evidence. If your motion to suppress evidence is successful, then this means that the illegally seized evidence will not be able to be used against you in court. This normally results in the criminal charges against you being dismissed.
Never Sold/Furnished/Administered/Gave Away/Transported/Imported into California
The defendant cannot be found guilty for selling/furnishing/administering/giving away/importing into California a controlled substance if the defendant never sold/furnished/administered/gave away/transported/imported into California a controlled substance. However, the defendant may still face other charges, including possession of a controlled substance or possession for sale of a controlled substance. See California Health and Safety Code Section 11350 and Health and Safety Code 11351.
Momentary Possession
Possession is not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:
- The defendant possessed the controlled substance only for a momentary or transitory period;
- The defendant possessed the controlled substance in order to abandon, dispose of, or destroy it; AND
- The defendant did not intend to prevent law enforcement officials from obtaining the controlled substance.
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true.
No Control Over Illegal Substance
The defendant cannot be charged with possession of a controlled substance if the defendant did not have control over the illegal substance.
However, the prosecution can satisfy this burden by proving that the substances were in a vehicle or home that belongs to you. Even if you did not personally buy the substances, or were not using the substances, the prosecution can still charge you with felony possession.
Awareness or Knowledge of Controlled Substance
The defendant cannot be charged with possession of a controlled substance if the defendant was not aware of the substance’s presence and that it was a controlled substance.
Entrapment
Entrapment can be used as a defense when the conduct of the police officer induced a normally law-abiding person to commit the crime that he or she is charged with. Entrapment is a very difficult defense. The level of conduct by the officer must be sufficiently coercive that it would be difficult for a reasonable person to refuse.
For example, in People v. Barraza, 23 Cal. 3d 675 (1979), the California Supreme Court has ruled that entrapment occurs when the defendant committed a crime only because of the police officer’s threats to commit the crime.
In this case, the defendant was a recovering heroin addict who sold heroin to an undercover cop. The only reason the defendant committed this crime was because 1) the undercover officer called him repeatedly at work; 2) he was afraid he would lose his job if the officer kept calling, so he agreed to meet with her, and 3) during the meeting, which lasted more than an hour, the officer pressured him relentlessly until he was overcome and gave in to the pressure. The police officer’s pressure was found to be so coercive that a reasonable person would find it difficult to refuse. The defendant’s conviction was reversed.
Entrapment does not result just because officers created a situation which made it possible for the defendant to commit the crime. For example, if the officers set up a car with the door opened and the key is in the ignition, and you decide to take the car and drive off you likely will not be able to raise a successful entrapment defense. This is because the prosecution will be able to show that you had “criminal intent to steal.” The prosecutor will argue that a normally law-abiding person would have resisted stealing the car under this factual situation.
