Being arrested for a drug trafficking offense can be devastating. The uncertainty, fear and feeling that everything is against you are overwhelming.
Can someone be convicted of drug trafficking if the substance was never in the defendant’s possession?
The theory of controlled delivery raises one of the most debated issues in Spanish criminal law: can a drug trafficking offense be considered consummated if the substance was never actually in the defendants’ possession, but under the authorities’ control?
The Supreme Court has resolved this issue in several rulings, establishing clear criteria on when the drug trafficking offense is considered consummated in these cases. The key lies in the concepts of consummation, attempt and control over the drugs.
If you find yourself in such a situation, understanding how this legal concept works can make the difference between an acquittal and a severe conviction. Keep reading and discover how a criminal defense attorney experienced in drug trafficking can help you get out of this problem with the best defense strategy.
What is the theory of controlled delivery?
The theory of controlled delivery is a technique used in investigations of crimes against public health, especially in cases of drug traffickingWhen is the drug trafficking offense consummated?
The consummation of the drug trafficking offense is one of the most controversial aspects in these proceedings. Determining at what moment the offense is considered to have been committed can completely change the course of a criminal case.
The drug trafficking offense is regulated in article 368 of the Criminal Code, which sanctions those who produce, manufacture, traffic or facilitate the trafficking of toxic drugs, narcotics or psychotropic substances.
According to the Supreme Court jurisprudence, in cases of controlled delivery, the offense is considered consummated when the defendant performs acts that demonstrate their active participation in the criminal operation, even though the drugs never left police control.
Is the intent to traffic sufficient or is it necessary to possess the drugs?
For a drug trafficking offense to be considered consummated, traditionally it is required that the defendant had some type of control over the substance. However, in controlled delivery cases, the drugs are always under the authorities’ supervision. So, can we really speak of drug trafficking?
Key points in the consummation of the offense:
- It is not necessary for the defendant to have physical contact with the drugs.
- It is suff
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Relationship with other investigative techniques: undercover agent and agent provocateur
Controlled delivery is often confused with other investigative techniques used in crimes against public health, such as the undercover agent and the agent provocateur. It is important to differentiate these concepts, as improper conduct by the authorities could be grounds for nullifying the case.
What is an undercover agent?
An undercover agent is a police officer who infiltrates a criminal organization to gather information about their activities. It is regulated in article 282 bis of the LECrim and is a legitimate tool when used correctly.
Difference between undercover agent and agent provocateur
The undercover agent is limited to observing and reporting, while the agent provocateur actively induces a person to commit a crime that they would not have committed otherwise. If a criminal defense attorney proves there was police entrapment, the case can be nullified.
Can a controlled delivery become an induced crime?
If the authorities, instead of limiting themselves to observing, artificially create a criminal situation, it could be argued that the police conduct exceeds legal limits, which could lead to the nullification of the evidence and the defendant’s acquittal.
Procedural issues and constitutional guarantees
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.