When it comes to drug possession charges in Wisconsin, there are two types of possession that can lead to criminal prosecution: actual possession and constructive possession. The type of possession the prosecution chooses to allege will have an impact on what kind of defenses might be available to the defendant. Today, we will look at the differences between these two types of possession, as well as some possible defenses for each.
Actual Drug Possession
Actual drug possession is just what it sounds like—the drugs are found on the person who is charged with possession. This can be in the form of drugs being found in a person's pocket, purse, or even in their hand. If drugs are found in any of these places, it is going to be very difficult for the defendant to assert any type of defense because it is going to be assumed that they knew the drugs were there and that they intended to use them.
Possible Defenses to Charges for Actual Possession
If the police find drugs on someone’s person, that does not mean that a conviction is guaranteed. There are still some possible defenses that can be effective. One such defense is illegal search and seizure. If the police conducted a search without a warrant or without probable cause, anything they found as a result of that search cannot be used against the defendant in court. Another defense is entrapment. This occurs when law enforcement encourages someone to commit a crime they would not have otherwise committed.
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