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Drugs at the Airport Charges Explained by a New York Criminal Defense Attorney

Despite the improvements in drug-detecting technology and processes – as well as the steep criminal penalties for those caught importing drugs into the United States – the drug smuggling business still remains lucrative enough to cause many people to attempt to import drugs through commercial airline flights. When smugglers are caught, however, the cases can be prosecuted either federally or at the state level.

In New York and New Jersey, when drugs are discovered in someone's luggage, for example, the subsequent arrest might be referred to either the local District Attorney's Office (the Queens DA for LaGuardia and JFK) or to the nearest U.S. Attorney's Office (the US Attorney for the Eastern District of NY for the New York airports, or the US Attorney for the District of New Jersey for Newark Airport). In the former case, the matter will be prosecuted under state law, and in the latter, under federal law. We find in our experience that arrestees on incoming flights from abroad tend to be referred more often to the federal authorities, whereas domestic flights usually go to the local authorities, but this is certainly not always the case.

Under New York state law, the applicable charge is contained in Penal Law Chapter 220 and depends both on the type of illegal substance being smuggled and the quantity possessed. In addition, a person's charges can be more serious if there is evidence of an "intent to sell" the narcotics; obviously, a large quantity of narcotics can be evidence of such an intent to sell, but possession of a small quantity of narcotics – even just one small bag – can still be prosecuted as an "intent to sell" felony in cases in which, for example, the arrestee admits that he intended to sell the drugs in his possession.

Under New York state law, the penalties for a conviction for possession of narcotics depend not only on the nature of the offense but also largely upon the extent of the person's criminal record. For example, predicate felons face much more significant jail time on drug offenses than first time offenders.

Under federal law, it is a serious crime to import narcotics into the United States. 21 U.S.C. Section 952 makes it illegal to do so, whereas 21 U.S.C. Section 841 makes it a federal crime to possess narcotics with the intent to sell or distribute them. The seriousness of these charges again depends on the type of narcotic and the quantity involved, as well as the arrested person’s criminal record. Other factors can mitigate the defendant’s sentencing exposure, and many “drug mules” are eligible for downward sentencing departures pursuant to the “safety valve”.

Finally, non-U.S.citizens arrested on suspicion of narcotics smuggling face particularly dire consequences. An agent from the Department of Homeland Security (and/or Immigration and Customs Enforcement, a sub-agency of that umbrella), will be notified of this arrest and the arrestee’s residency status, and s/he will certainly submit an “immigration detainer” on the person. This effectively means that a deportation proceeding is likely to ultimately happen. It also means that securing the arrested person’s freedom is going to be more complicated for his family than simply posting a criminal court bail; indeed, getting released from custody altogether in some cases may be impossible when immigration detainers are involved.

If you or a loved one have been arrested on suspicion of smuggling drugs or narcotics at a NYC-area airport, you should strongly consider retaining the services of an experienced criminal defense attorney.