Numerous statutes throughout the country identify and prohibit controlled substances, creating an elaborate set of drug schedules containing hundreds of plants, synthetic compounds, and other materials. Correct identification of an allegedly illegal drug is a key part of proving guilt beyond a reasonable doubt. Police officers charged with enforcing drug laws cannot reasonably be expected to recognize all, or even most, of these substances on sight. Field kits used to test suspicious substances, however, have a very poor track record for reliability and have led to multiple wrongful convictions in Texas drug crime cases. Police often focus on a small number of drugs that, because of their general familiarity, tend to stand out among the multitudes of substances contained in state and federal schedules. A recent case, which involved the inaccurate visual identification of a hibiscus plant as marijuana, demonstrates this problem.
Both the federal Controlled Substances Act and its Texas equivalent prohibit the possession and distribution of marijuana. In Texas, it is an offense to “knowingly or intentionally possesses a usable quantity of marihuana.” Tex. Health & Safety Code § 481.121(a). The offense ranges from a Class B misdemeanor to a felony punishable by life imprisonment, depending on the amount. Texas prohibits “delivery” of marijuana, defined as “transfer[ring]…to another a controlled substance,” with similar penalties. Id. at §§ 481.002(8), 481.120. Delivery of marijuana to a child is a second-degree felony, regardless of the amount. Id. at § 481.122. All of these offenses require proof that the defendant acted “knowingly” and that the substance at issue was, in fact, marijuana.
A lawsuit filed by a married couple in Pennsylvania illustrates how quickly misidentification of an alleged controlled substance can go wrong. Cramer v. Nationwide Mut. Ins. Co., et al, No. 17-11043, complaint (Pa. Ct. Comm. Pleas, Butler Cty., Nov. 16, 2017), removed to No. 2:17-cv-01657 (W.D. Pa., Dec. 22, 2017). Although the case involves a civil lawsuit, one erroneous field test could have made it a criminal matter. According to the plaintiffs’ complaint, an insurance agent visited their home in October 2017 to survey damage from a fallen tree. They allege that the agent took photographs of several hibiscus plants, mistakenly believing them to be marijuana plants. The agent allegedly turned these photographs over to local police and reported that the plaintiffs were growing marijuana on their property.