Field Tests Used by Police to Detect the Presence of Drugs Present Numerous Problems for Texas Defendants’ Rights

In the four decades of the United States’ “War on Drugs,” law enforcement officials have adopted a vast array of technologies that detect the presence of controlled substances. This includes prepackaged drug-testing kits that allow officers to test substances in the field but that have also reportedly led to a significant number of “false positive” results. Because of criminal court procedures that encourage plea bargaining, many people have pleaded guilty to drug crimes they did not commit because of false positive field test results. A report by the New York Times and ProPublica highlights a case in Houston, Texas, in which a woman pleaded guilty to possession of crack cocaine, only to be exonerated years later by more thorough testing of the material seized from her car.

The Fourth Amendment requires police to obtain a warrant before conducting a search or seizing property. Exceptions to this requirement include the “plain view rule,” which allows police to seize property that is within their line of sight, and the vehicular exception, which allows them to conduct a reasonably limited search of a vehicle during a traffic stop. If an officer sees something in a vehicle that they believe is a controlled substance or drug paraphernalia, they can legally seize that material. Field testing kits allow them to make a quick assessment of the seized material, except the kits themselves are not always reliable, and individual officers may not use the kits correctly.

The New York Times report describes the field test kits as containing vials of chemicals that turn a certain color when exposed to certain chemicals found in illegal drugs. For example, one vial contains a cobalt thiocyanate, which turns blue when it comes into contact with cocaine. Over 80 other compounds can also cause it to turn blue, however, “including methadone, certain acne medications and several common household cleaners.” The tests may also be affected by environmental conditions like hot or cold weather, and lighting conditions can affect officers’ ability to correctly assess test results. Despite these problems, many police departments use these kits extensively.

The story out of Houston reported by the New York Times involved the arrest of a woman after a traffic stop in 2010. One of the officers claimed to spot a syringe stuck in the ceiling of the vehicle. He informed the woman that if she did not consent to a search, he would bring in a drug-sniffing dog. She consented, and the officer removed a “crumb” from the floor of the vehicle that he believed was crack cocaine, along with a box of an over-the-counter painkiller. A field test on a small piece of the crumb indicated the presence of cocaine. She was charged with cocaine possession and rushed through the plea process. She served 21 days of a 45-day sentence and was released as a convicted felon.

The materials taken from the woman’s car were put into storage and were set to be destroyed when the Harris County DA’s office decided to test the materials more thoroughly in the lab in 2011. They turned out to be an over-the-counter painkiller and a crumb of food. The Texas Court of Criminal Appeals overturned the woman’s conviction. Ex parte Albritton, No. WR-85,184-01, opinion (Tex. Crim. App., Jun. 22, 2016). She is now waiting for the exoneration to be completed by the Houston trial court.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified drug crime lawyer Michael J. Brown represents people facing alleged state and federal charges in West Texas courts. To schedule a confidential consultation to see how we can help you, contact us today online or at (432) 687-5157.

More Blog Posts:

Medical Marijuana Laws Cause Shifts in Court Rulings on Marijuana Odor and Probable Cause for Search Warrants, Texas Criminal Lawyer Blog, September 7, 2016

2015 Set New Record for Total Number of Exonerations, with Texas at the Top of the List, Texas Criminal Lawyer Blog, May 28, 2016

Texas Law that Took Effect Last Year Bans 1,000 Chemicals Potentially Used in Synthetic Marijuana, Texas Criminal Lawyer Blog, April 15, 2016


Contact Information