Drug Trafficking

While state and federal laws have their own criminal statutes on drug trafficking, most states mirror existing federal laws.

The penalties for importing, transporting, and selling illicit drugs such as cocaine, heroin, methamphetamines, and other Schedule-I drugs carry some of the most severe penalties. However, state penalties are usually less severe than federal penalties.

The Crime of Drug Trafficking

Federal Jurisdiction

Federal jurisdiction can be triggered if the drug traffic flows into the U.S. from a neighboring country. Since the U.S. border with Mexico extends nearly 2,000 miles, it is no surprise that most illicit drugs enter the United States through our southern borders, such as Texas, California, and Arizona.

Another way of triggering federal jurisdiction is if the drugs cross between state lines.

Impact On Border Crossing During Covid Pandemic

According to the May 2021 Border Report, at the inception of the 2020 pandemic, there was a sharp increase in the number of U.S. citizens arrested for attempting to smuggle narcotics into the U.S.

The increase is believed to have resulted from changes in U.S. travel restrictions with Mexico and Canada. The logistical changes were corrected and closed back up again in late 2022 by the Biden administration.

Proving Possession with Intent to Traffic Drugs

The prosecutor must prove the defendant had:

• The accused exercised control over illicit drugs
• The accused knew that the illicit drugs were present
• The accused knew that the illicit drugs were narcotics or another form of illicit drugs
• The accused possessed the drugs knowing their purpose was to sell and distribute them

Direct and Circumstantial Evidence

In proving the case against a criminal suspect for drug trafficking, the prosecutor must prove every element of the defendant’s crime beyond a reasonable doubt.

The evidence used to prove the case can be direct or circumstantial.

Both are legally valid and accepted forms of proof in a court of law. However, direct evidence of an actual drug transaction is usually more persuasive to jurors than circumstantial evidence.

In those drug trafficking cases in which direct evidence is limited, prosecutors will lean heavily on circumstantial evidence. This form of circumstantial evidence in drug trafficking and distribution cases is called indicia evidence.

Indicia evidence includes the presence of items such as scales, baggies, roles of cash, a substantial quantity of a single type of drug, buy-sell journals, and, when possible, the direct testimony of a percipient witness such as a confidential informant who will testify in support of the prosecution’s case.

Constitutional Defense – Violation of 4th Amendment

The Bill of Rights protects us against the tyranny of the state through its police powers. The 4th Amendment guarantees the individual will be free from unreasonable searches, seizures, and arrests without proof of probable cause that a crime had or is about to be committed.

The 4th Amendment to the Constitution provides the following:

• The right of the people to be secure against unreasonable searches and seizures of their person, houses, papers, and effects
• That the right to be secure against unreasonable searches and seizures shall not be violated
• No warrant shall issue unless it is supported by probable cause
• Should the warrant be issued, it must be supported by a sworn oath or affirmation.
• The warrant must specifically describe with particularity the places searched and the persons and things to be seized  (U.S. Constitution – Fourth Amendment)

Whether drug trafficking is a state or federal crime, both justice systems must follow the Constitution and the Bill of Rights.

Remember that while the states have the authority to enact laws that add to the civil liberties and rights afforded by the Constitution, the states are forbidden to pass laws that lessen or remove such freedoms or fundamental rights from individuals.

Exclusionary Rule – Evidence of Drug Trafficking

Any evidence seized in a drug trafficking case that violates the 4th Amendment must be excluded from the trial.

If excluding such evidence prevents the prosecutor from proving the case because of insufficient evidence, the case must still be dismissed.

The Entrapment Defense

In drug cases, law enforcement heavily relies on confidential informants to assist them in investigating their cases and, if necessary, testify at trial. However, the danger in using a confidential informant is that it leaves the door open for the defense to argue the defense of entrapment.

Entrapment usually refers to the situation in which a confidential informant works with law enforcement and pressures the defendant into committing a crime they would not have committed. An entrapment defense must establish that the defendant would not have committed the crime but for the coercion of law enforcement.

Substantial Assistance

When the accused is facing criminal liability, such as having to serve a substantial prison term, law enforcement will try to “turn” the accused into a state witness or informant against the higher-ups in the criminal enterprise, such as the manufacturer or individual cartel members, in exchange for charges dropped or a lighter sentence. Sometimes, depending on the size and importance of the drug case, law enforcement may offer the suspect admission into a witness protection program for turning state evidence.

Drug Trafficking Penalties

Sentences for drug trafficking range from 3-5 years to life in prison. Depending on the circumstances of the case, such as the quantity of the distribution and the type of drugs involved, sentences can and often do run substantially higher.

Under Title 21 U.S. Code § 841, it is illegal to manufacture, distribute, dispense, or possess controlled substances.

Those violating federal or state drug trafficking laws face substantial prison time and penalties, depending on the quantity and type of controlled substance involved.

For example, under the federal minimum sentencing laws, 5,000 grams of cocaine will result in a minimum prison term of five years to a maximum of life, while 500 grams of cocaine will result in a minimum prison term of five years to a maximum of forty years.

Other than the essential minimum and maximum prison terms described by the examples above, penalty enhancements usually run consecutively with the primary drug trafficking sentence.

Penalty enhancements can include:

• Whether the distribution location was next to schools or where children congregate
• Whether firearms were involved,
• Whether the drug trafficking resulted in serious bodily harm or death,
• Whether the defendant had prior felony convictions

Conviction of Drug Trafficking is a Deportable Offense

Confer With A Criminal Defense Lawyer

Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Lawyer as soon as possible.