Introduction

Louisiana’s laws governing drug crimes cover a broad range of offenses related to the possession, distribution, and intent to distribute controlled substances. Understanding the different charges and their implications is crucial for individuals facing drug-related accusations. This article will discuss the categories of drug crimes in Louisiana, common fact patterns in drug cases, legal issues, and common defenses.

Drug Possession in Louisiana

Drug possession in Louisiana refers to the knowing and intentional control of a controlled substance without a valid prescription. Louisiana has adopted the Uniform Controlled Dangerous Substances Act and, with it, has criminalized to various degrees the five scheduled substances.  As a general rule, the penalties for illegal drug possession a grouped according to its schedule but over time, exceptions have been carved out for specific drugs depending upon their popularity or when an “epidemic” makes national attention. For example, marijuana and heroin, are both schedule I drugs but each having its own set of penalties.  At the moment, Louisiana is decriminalizing marijuana but tightening its stances based upon heroin overdose cases in the media and its growing trend to be infused with fentanyl. Other drugs that are singled out from its schedule include cocaine and  methamphetamine.  This article will not devolve into the specific penalties for anyone drug and will instead focus on an overview for anyone charged with drug related crimes in Louisiana.

Common Louisiana Drug Possession Cases

The police routinely encounter people possessing illegal drugs in quantities that indicate they are for personal consumption and not for resale.  These encounters can stem from their discovery of drugs in plain view during a traffic stop; seizing drugs during a stop and frisk scenario; observing someone purchase from a drug dealer under surveillance; or even observing someone using the drugs in a public place.  These scenarios will inevitably require a theory of prosecution based upon the type of possession in question.  Broadly speaking, there are three types of drug possession cases.

A. Actual Possession

Actual possession drug cases are the most straightforward drug prosecutions because the defendant was found to have drugs on their person.  The drugs could be in their hand, within their pockets or secreted in a backpack or purse.  The point is that the offender is actually holding the drugs in some capacity when they encounter the police.  In these cases, a defense will track the elements of the crime very tightly: did they know they were possessing a drug?; did they intend to possess a drug? And was the substance they possessed an actual drug?

Amazingly, they are people found in possession of narcotics who simply lacked the knowledge and intent to possess a drug.  Maybe they thought their friend was giving them an aspirin when, in reality, gave them a prescription pain killer?  Maybe someone put something into their bag without their knowledge?  Finally, and this does happen, maybe the substance they possess, when tested by the crime lab, turns out the be fake.  In other words, the offender was duped into thinking they were purchasing real drugs when, in fact, the bought “bunk”

B. Constructive Possession Cases

Constructive possession drugs cases charge someone with possessing drugs that are within their dominion or immediate control.  The most common scenario involves traffic stops and residence searches.  When a car is searched, can you automatically assume that the drugs in the center console belonged to the driver?  What about the drugs located in a gym bag in the trunk?  Complicating matters, often cars are occupied by multiple people, friends and family share cars and groups of people commonly rent cars.  In these situations, unless someone accepts ownership on the scene, everyone inside of the car will be arrested.  A similar scenario occurs during residence searches.  Who possesses the drugs secreted in a box in the top kitchen cabinet?  The attack or guest bedroom?  Does it matter if your name is not on the lease?  Each of these fact patterns are quite common.

A crucial element in these cases will be establishing the defendant’s dominion over the contraband.  In car cases it may be establishing that the defendant is the registered owner of the car or is in a close relationship with the owner.  Similarly, in residential search cases, is the defendant the owner or leaseholder?  Are they able to find documents such as electric bills or magazine subscriptions that show him using the address.

Another crucial element is knowledge of the existence of contraband.  Is any of the drugs or paraphernalia found in open or public spaces?  Are the items shielded from public view found in an area where the defendant has obvious access.  For example, drugs found in his nightstand or large sums of cash found in his clothes drawer. 

In vehicle search cases the location of the drugs is as important.  Is it in the center console or in another open area of the passenger compartment?  Is it under the defendant’s seat within the car when he was pulled over?  And, if inside of the trunk, is it concealed in bags belonging to the accused?

Constructive possession cases are easier to defend as the possibility of the drugs belonging to another person are more probable and the defendant’s knowledge of the contraband is less certain.

Drug Distribution and Possession with Intent to Distribute in Louisiana

Drug distribution refers to the sale, delivery, or transfer of a controlled substance, while possession with intent to distribute involves possessing drugs with the intent to sell or distribute them.

A. Distribution Cases

A distribution case is straightforward: the defendant is accused of selling drugs to another person.  Despite this assertion there are a variety of legal issues implicated within these prosecutions.

The first issue is identifying to whom the person sold drugs?  It is going to be one of three people: an undercover officer, a confidential informant or a co-defendant.

The most common prosecution involves the sale of drugs to an undercover officer on multiple occasions.  Normally, an undercover cop is introduced to the drug dealer through a confidential informant who arranges for a drug sale with the accused in which the undercover police officer participates in the sale.  This makes the officer a material witness to the criminal activity and allows him to testify about the distribution with first hand knowledge. 

Many of these cases involve audio and video recordings of the drug transactions and setting them up.  These cases are harder to defend because the identity of the drug dealer is captured on the recording and the audio of the transaction makes it less likely the accused can argue an entrapment defense.

The second type of drug distribution involves co-defendant testimony.  This can come in one of two forms.  The most common is a co-conspirator who is cooperating in exchange for leniency.  This allows for the prosecution to introduce co-conspirator statements between the conspirators as an exception to the hearsay rule allowing the prosecution to establish the defendant’s knowledge of the crime.  These prosecutions are more extensive as they allow for the co-conspirator to discuss the manner and means of acquiring wholesale drugs, their distribution channels and where the drugs are concealed and processed for sale.

The other, and less common, co-defendant prosecution involves using the purchaser of the narcotics as a witness.  In these cases, typically the police conducting surveillance observe a drug transaction and radio patrol officers to take down the buyer’s car.  During the course of the traffic stop, the patrol officers will attempt to manufacture probable cause to search the vehicle and find drugs.  Often, in exchange for testimony regarding the source of supply, the buyer’s possession charges will be dismissed.

The least common drug distribution prosecution involves using a confidential informant.  These cases are rare because the state has a vested interest in protecting the identity of the informant for safety concerns.  However, if they chose to proceed with prosecuting informant only drug sales they will need to “burn the C.I.” and reveal his identity.  Also, they will have to inform the defense about any evidence they have that impeaches the credibility of the informant.  For example, is the informant being paid for his cooperation?  Is the informant “working off charges”?  Meaning, will the police forego arresting the informant on some other charge in exchange for him assisting in facilitating drug deals on behalf of law enforcement?  And, what is the criminal record of the informant?

These prosecutions a ripe with evidentiary issues that make prosecution more difficult.  First, these cases are susceptible to entrapment arguments especially when the conversations setting up the drug transactions are not recorded. Second, an informant is inherently unreliable.  They have a vested interest in having other people arrested and convicted.  Third, their availability for trial is not certain.  It stands to reason that many informants are drug addicts.  Keeping them sober and locatable throughout the course of prosecution can be difficult.

B. Possession With Intent to Distribute Cases

 These cases are quite common and, in many respects, are simply enhanced versions of drug possession prosecutions.  So, what makes a PWITD case as opposed to a possession drug case?  There are a variety of factors considered.

1. Quantity and Types of Drugs

There is only so much drugs a person can possess before an argument of having it for personal use becomes untenable.  There is a huge difference between 10 grams of cocaine and a kilo of cocaine. One is indicative of personal use and the other is obvious drug trafficking.  Also, the presence of multiple narcotics indicates drug trafficking. Someone may have a vice with one or two substances but when they are found to possess many substances, even in smaller amounts, it suggests they are a low level dealer.

2. Tools of The Trade

Drug users will possess the drugs and the paraphernalia to consume them whereas drug dealers will possess the means to produce and package them.  Drug dealers will commonly possess digital scales, vacuum sealing equipment and a large selection of ziplock baggies in a variety of sizes.  The more sophisticated dealers will also be found to possess drug ledgers and equipment to produce drugs for sale.  This can be pill press machines, “cutting” supplies that reduce the purity of the drugs or items with drug residue on them.

3. Cash

Drug dealers tend to have a lot of money on hand.  Whenever someone secrets large amounts of cash throughout their residence or inside of their car or on their person, it is a factor to consider as to whether the person is a drug dealer.  While people carrying a hundred or so dollars on their person is not uncommon, carrying thousands of dollars will be. Similarly, it is unusual to conceal a hundred thousand dollars or more inside of the home.

4. Law Enforcement Knowledge

Often, possession with intent to distribute drug cases arise out of the execution of a search warrant where a stash of drugs and manufacturing materials is located throughout the house.  The basis for obtaining the search warrant is normally inadmissible at trial unless the prosecution wants to reveal informant identities but what the officers do prior to executing the search warrant is fair game.  In many cases they will conduct “pre- execution surveillance” and report observing drug trafficking activities.  For example, they may report seeing the accused engage in multiple hand to hand transactions or report seeing many vehicles approach the residence and people go inside for only a few minutes before leaving which is something unusual in normal situations. 

Common Fact Patterns in Louisiana Drug Cases

In this article we have described common scenarios for which drug possession and drug distribution cases arise  In this section of the article we will summarize them and identify a few other common scenarios. Here are the most common scenarios:

1. Traffic stop with vehicle search: A routine traffic stop may lead to a search of the vehicle if the officer has probable cause to believe drugs are present. This could result from the odor of drugs, drug paraphernalia in plain view, or suspicious behavior by the occupants.
2. Sale to an undercover officer: Law enforcement agents may pose as buyers to apprehend individuals selling drugs. The evidence gathered from these transactions can be used to support drug distribution charges.
3. Use of a confidential informant: Authorities may rely on informants to provide information about drug activity or to set up controlled drug deals. The evidence obtained through these informants can form the basis for search warrants or arrests.
4. Executing a search warrant on a home: If a judge issues a search warrant based on probable cause to believe drugs are present in a residence, law enforcement may search the property and seize any illegal substances found.
5. Stop and frisk encounter with a pedestrian: An officer may stop and frisk an individual if they have reasonable suspicion that the person is involved in criminal activity, which may lead to the discovery of drugs

Common Legal Issues in Louisiana Drug Cases

Various legal issues may arise in Louisiana drug cases, such as:

1. Actual versus constructive possession: The type of possession can significantly impact a case, as constructive possession may be more challenging to prove than actual possession. Evidence like proximity to the drugs, ownership of the area where the drugs were found, and statements made by the defendant may be relevant in determining possession.
2. Sole versus joint possession: In cases involving multiple defendants, the prosecution must establish each person’s role in the possession of the drugs. If the prosecution cannot prove that each defendant had control over the drugs, it may be difficult to secure a conviction for everyone arrested..
3. Use of other crimes evidence: Prosecutors may attempt to introduce evidence of prior drug-related offenses to establish a pattern of behavior or to show knowledge or intent. However, the admissibility of such evidence is subject to strict rules, and the defense may object if the evidence is prejudicial or irrelevant.

Common Defenses in Louisiana Drug Cases

Defendants in drug cases may rely on various defenses to challenge the charges against them, including:

1. Lack of knowledge: The defendant may argue that they were unaware of the presence of drugs, which can be a viable defense if they can provide credible evidence supporting their claim.
2. Lack of intent: In cases involving possession with intent to distribute, the defendant may contend that they possessed the drugs for personal use rather than for sale or distribution. Evidence such as the amount of drugs, the presence or absence of packaging materials, and the defendant’s statements can be used to support this defense.
3. Entrapment: The defendant may claim that law enforcement officials induced them to commit the drug offense, and they would not have done so without the government’s involvement. To successfully argue entrapment, the defense must demonstrate that the government’s actions went beyond merely providing an opportunity for the crime.
4. Unconstitutional search and seizure: If law enforcement obtained evidence through an unlawful search or seizure, the defense can file a motion to suppress the evidence. This may involve arguing that the police lacked reasonable suspicion for a stop, probable cause for a search, or a valid search warrant.

Conclusion

Given the complexities of Louisiana’s drug laws, individuals facing drug-related charges must work with an experienced criminal defense attorney. A skilled lawyer can analyze the totality of the circumstances surrounding the case, identify relevant legal issues, and develop a strong defense strategy tailored to the client’s unique situation. By understanding common fact patterns, legal issues, and defenses, defendants can better navigate the legal process and protect their rights.