A. The De Minimus Defense

Under the Criminal Code, the Superior Court assignment judge in the county where a case is pending can dismiss a prosecution that is too trivial to warrant a conviction. In cases involving trace amounts of a CDS, however, the courts have consistently rejected arguments that a dismissal under this section of the statute is justified. On one occasion, a court observed that "possession of any quantity of CDS, no matter how small, is part and parcel of the State's overall drug problem."

B. The Mere Presence Defense

Given the enormous variables associated with joint and constructive possession concepts, one need not be possessed of any great genius to recognize the potential of criminal liability the moment one enters a home, an apartment or a motor vehicle where a CDS is present. Indeed, as a practical matter, law enforcement officials will usually charge everyone found in the premises or the vehicle with a violation under the Drug Statute, whether the offense is mere possession or the more serious possession with intent to distribute, even though there is some evidence that indicates that one or some of the people at the site were ignorant of the presence of the CDS. The government will take this blunder-buss approach with the hope that the harshness of the sentence associated with the offense will coerce an accused to act as a "snitch" against the others. Unfortunately, this system of justice clearly nurtures a play-for-pay mentality, where the first person to ring the prosecutor's bell may very well walk away from a virtual hell-hole of imprisonment without liability even though the snitch may have been the most culpable of all the actors.

In analyzing cases of this nature, however, case law has established that the mere presence of a person at a location where CDS is found is not sufficient, in and of itself, to sustain a conviction for possession of a CDS or possession with intent to distribute a CDS. Unfortunately, there is a whole "constellation" of other factors that the government may use to overcome the "mere presence" rule in its journey toward a conviction. Some of those facts included: (1) statements that may have been made; (2) furtive or suspicious conduct before or after the CDS was detected; (3) the location of the CDS; (4) the arrestee's proximity to the CDS; (5) the arestee's relationship with other people; (6) the arrestee's ownership interest in the place where the CDS was detected; (7) the quantity of the drug; (8) the amount of cash in the arrestee's possession; and,(9) the nature and extent of drug paraphernalia located at the site.

C. The Fleeting Moment Defense

One who receives an object or substance from another and immediately recognizes it to be a CDS and then divests himself/herself of it shortly after learning of its illicit nature, may not be convicted of a possessory offense, because the possession was only for a "fleeting moment." The person who holds an object belonging to another just long enough to discover its character and promptly rejects control over it, can not be guilty of possession of the object because he/she did not develop the necessary intent to control it. This rule is narrowly drawn, however.

D. The Entrapment Defense

There are two types of entrapment recognized by the law. One is defined by statute (Statutory Entrapment). The other is influenced by constitutional considerations that finds their roots in the Due Process clauses of the state and federal constitutions. (Due Process Entrapment).

Statutory Entrapment is an affirmative defense, which the accused must prove by a preponderance of the evidence. The defense has both subjective and objective elements. The subjective element occurs when the government plants a criminal scheme into the mind of a person, who would not ordinarily have committed the offense. The objective element occurs when the government's conduct is so egregious in nurturing a person's criminal conduct as to "impugn the integrity of the court that permits a conviction." All issues associated with Statutory Entrapment must be determined by a jury.

Due Process Entrapment, on the other hand, concentrates exclusively on the government's conduct and the extent of the government's involvement in the commission of the crime. The standard is whether the government's conduct was "patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." The analysis requires close scrutiny of the government's conduct, given all attending circumstances, including whether: (1) the government or the accused was primarily responsible for creating and planning the crime, (2) the government or the accused primarily controlled and directed the commission of the crime, (3) objectively viewed, the methods used by the government to involve the accused in the commission of the crime were unreasonable, and (4) the government had a legitimate law enforcement purpose in bringing about the crime. Unlike Statutory Entrapment, contests involving Due Process Entrapment issues must be resolved by the court. Notably, Due Process Entrapment can be proven even though a defendant fails to establish Statutory Entrapment.

Again, while Statutory Entrapment places the burden of proof on the defendant, the burden of proof in a Due Process Entrapment defense is the government's responsibility. The state must disprove Due Process Entrapment by "clear-and-convincing" evidence. The reason for this rule is bottomed upon the recognition that the government created the events under scrutiny and since the government has better, if not exclusive control, over the evidence needed to prove Due Process Entrapment, the courts shift the burden to the government. In order for a person to obtain the benefit of this proof-shifting-burden, however, he/she must initially produce some evidence of Due Process Entrapment before the burden can be switched.

Copyright (c) 2008 Frank Luciano