This drug test can’t tell the difference between menstrual cramp medication and crack cocaine.
Police use it to determine probable cause anyway.
Probable cause for a warrant-less arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to cause a person of reasonable caution to believe that a crime has been committed.
In the context of warrant-less drug arrests, the officer’s training and experience with regard to narcotics identification is critical to establishing probable cause.
See State v Grande, 187 P.3d 248 (2008) (probable cause to arrest the occupants of a car for possession of a controlled substance exists when a trained officer detects the odor of a controlled substance emanating from a vehicle).
The methods police officers use in the field to establish probable cause are prone to misinterpretation
However, the methods police officers use in the field to establish probable cause to believe a seized item is a controlled substance are extremely vague and prone to misinterpretation and error. This is a fact that Courts in Washington State seem to have little concern for, because too often the system minimizes the impact of being arrested and charged with a crime.
Legally speaking, probable cause to arrest and charge someone with a drug crime requires less evidence than what is required to actually convict someone at trial. And, ironically, nothing police officers use to determine whether a seized item is a controlled substance is sufficient in itself to establish proof beyond a reasonable doubt at trial. So what generally happens is that police make a determination in the field that the item they seized is a narcotic; arrest the suspect and charge her with a crime; AND THEN have the substance formally tested by the Washington State Patrol Crime Lab.
The problem with this is that it takes months for the crime lab to make its determination and meanwhile too many defendants sit in jail unable to post bail. Chris Van Vechten once had a male client accused of possessing crack cocaine. He insisted it was in fact menstrual cramp medication and that he only ran from the police because – as an African American with experience in the system – he feared for his life when confronted by a white police officer. Yet his explanation as to why he would have loose menstrual cramp medication in his pocket was not convincing and he had prior drug convictions. Because the stop was questionable, he had a good case, but he couldn’t afford to bail out so he took a plea deal to resisting arrest after serving 33 days in jail. Two months later, the Washington State Patrol Crime Lab determined the alleged crack cocaine was in fact Midol menstrual cramp medication. No apology was ever offered by the State.
Incidents like that, while admittedly the exception and not the rule, are still far more common than people should be comfortable with. And so with that in mind, we must consider how police determine that what they encounter in the field is a controlled substance.
Probable cause and justification of arrest for possession of controlled substances
There are five main methods police use to determine whether a seized item is a controlled substance in the field:
SMELL. Some drugs, like marijuana and often heroin, have a distinct odor officers are trained to detect. But often times these odors are associated with legal substances like vinegar.
VISUAL IDENTIFICATION. Many police officers attest to having “familiarity” with controlled substances and that they know from their “training and experience” that what they are looking at is a controlled substance. This is particularly the case with methamphetamine.
SURROUNDING PACKAGING AND PARAPHERNALIA. Often times controlled substances are kept with the tools used to enjoy them and so finding tubers or needles in the same packaging as the substance is often a good indicator as to what the item is.
ADMISSIONS FROM THE DEFENDANT. Police officers will usually ask “what is this?” to an arrestee in hopes of getting an admission to what it is. A large percentage of suspects will confess because they believe that by doing so the system will view them as taking responsibility for their actions. Unfortunately, in many jurisdictions, those who “do the right thing” get prosecuted the harshest. It is always best to remain silent and say something like “you look like a really nice guy officer, and I want to help you out, but I really don’t know what I’m doing here and think I should talk to a lawyer first.”
DRUG TESTING FIELD KITS. These are unfortunately the most common tools used to determine whether a substance is a narcotic in the field. Unfortunately, both law enforcement, the courts and the general public have unfounded faith in these tests.
Arrest justifications often fall apart during a diligent interview
Chris interviewed an arresting Pierce County Sheriff Deputy in September of 2019 who had charged our client with unlawful possession of a controlled substance, crack cocaine, following his arrest in July of that same year.
The deputy’s basis for probable cause was three part: (1) his supposed familiarity with what crack cocaine looks like; (2) the defendant’s suspicious answer to the question “what is this?”; (3) the results of a NIK field test kit that positively identified the substance as crack cocaine.
However, the Deputy also acknowledged he was storing his narcotics field test equipment in the trunk of his vehicle. It goes without saying that July is among the hottest months of the year. The deputy also directed Chris to the exact brand of field test kit he was using on the date of the arrest via a website that sold these tests to the general public for less than $20 (plus shipping). The included NIK manual warns that users must: “store NIK tests in a cool, dark area. Heat will speed up the action of the chemicals in each test, and extreme cold will slow them down. Appropriate care should be exercised. Do NOT store in direct sunlight.”
The manual further indicates that cocaine is one of, if not the most, difficult substance to test in the field. NIK kits inform their users as to the nature of the substances they are testing via a color-coding system. But unlike most other controlled substances, cocaine can trigger a rainbow of color reactions at various stages of the process that can easily confuse the operator. These include “blue or pink with blue speckles after breaking the first ampoule” or “light peach” or “no color at all”; followed by “a pink result after breaking the second ampoule” and finally a “pink layer over a blue layer after breaking the third ampoule.”
More concerning, the deputy declared that NIK field test kits are “100 percent accurate.” This is false.
Furthermore, “there is lack of evidence that NIK® tests are accepted by scientists and experts in the field as a valid drug tests due to the occurrence of false positives.” David J Symonsbergen, Michael J Kangas, Marco Perez, Andrea E Holmes, Evaluation of the NIK® test: Primary general screening test for the presumptive identification of drugs,Doane University, International Journal of Criminal and Forensic Science, Volume 2 Issue 5, September 2018, page 83. Cocaine is particularly susceptible to false positives with the NIK brand, and in fact, in at least one case number, the Imperial County Superior Court ruled that NIK test results are insufficient to establish probable cause for indictment purposes due to an absence of support from the scientific community for the NIK test product. Id.
A reasonable person in a police officer’s position – with proper training and experience – would be aware of the nationwide issue of hundreds of people being arrested based on faulty NIK test results.
But at least one Pierce County Sheriff Deputy is under the impression these tests are 100 percent accurate. His lack of awareness is not unique, however, because – although the Department of Justice ordered field test kit manufactures to include warnings of test fallibility on the packaging of their products 20 years ago – all major manufactures continue to ignore the order. See Ryan Gabrielson, Unreliable and Unchallenged, ProPublica, October 28, 2016.
Additionally, the failure to properly store field test kits in a climate-controlled environment goes to the issue of whether a reasonable person – aware that such storage was improper and detrimental to the test – could really find probable cause based on the result of said test, without abandoning “reasonable caution.”
Warrantless arrests absent probable cause are unconstitutional
The Constitutional requirement of prohibiting warrantless arrests absent probable cause to believe the suspect is guilty of a crime cannot be reasonably ensured and preserved if the basis for probable cause is derived from the results of a test, machine, or process that is utilized by an officer with insufficient training, experience and overall competency to interpret the results.
Local leaders and members of law enforcement need to transition away from these field test kits and instead merely confiscate the substance at issue, identify the person from whom it was taken, inform them they are being investigated for possession of a controlled substance and that they should check their mailboxes for a summons to avoid a warrant if and when what the suspected drug is confirmed. This would dramatically reduce the number of people arrested and jailed for false positives (which, according to many studies, is 1 in 20 nationwide).
In the meantime, local defense attorneys need to challenge probable cause finds to arrest regardless of whatever the substance proves to be.
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