Lawsuits Challenge Police Use of Field Drug Testing Kits

Police have devised a vast array of tools and techniques for drug-related investigations. In any prosecution that involves drug possession, the state must be able to prove that a defendant actually possessed illegal drugs. Laboratory tests are available but take time and are often subject to a backlog. Many police departments have turned in recent years to field-testing kits. Unfortunately, these kits are highly prone to errors, including false positive results. In addition to numerous appeals and other post-conviction claims, several lawsuits around the country are challenging the use of these tests on various constitutional grounds.

During a traffic stop, a person’s vehicle may be subject to search without a warrant under several recognized Fourth Amendment exceptions. The automobile exception allows police to search a vehicle if they have probable cause to believe that part of the vehicle contains contraband. This exception derives from the plain-view doctrine, which states that police may search or seize property that is within their line of sight, such as something visible to the officer while standing outside a vehicle during a traffic stop. The exigent circumstances exception also applies, since the vehicle’s mobility creates the risk of losing evidence.

If an officer finds something they suspect might be an illegal drug, the field-testing kit allows them to test it on the spot. A typical kit contains several vials of chemicals that change color if they come into contact with specific drugs. One problem is that some of these chemicals also change when they come into contact with various common and entirely legal substances. Officer errors can also result in false positive results, such as if an officer mishandles one or more vials, if rain or other elements interfere with a test, or if poor lighting conditions result in an incorrect evaluation of a test result. Regardless, a positive test result almost invariably leads to an arrest, and defendants are often pressured to enter a quick guilty plea, even if they maintain their innocence.

Subsequent laboratory testing of materials seized in these types of arrests have identified numerous false positive results, which led to the convictions of innocent people. Sometimes this information becomes known to prosecutors before a final disposition occurs, in which case they are obligated to provide the negative test results to the defendant. Brady v. Maryland, 373 U.S. 83 (1963). This does not always happen, unfortunately, meaning that many defendants must seek relief through an appeal or habeas petition.

Several civil lawsuits are also challenging the use of these tests, asserting claims like false imprisonment and civil rights violations. One lawsuit against a city government and a testing kit manufacturer asserts that a substance identified by the kit as amphetamine “was in fact Krispy Kreme donut glaze, as the plaintiff informed” the arresting officer. Rushing v. City of Orlando, et al., No. 2016-CA-009003-O, complaint at 2 (Fla. Cir. Ct., Orange Co., Oct. 14, 2016). In another case, a testing kit allegedly misidentified “a food enzyme…used in the cheese making process” as methamphetamine. Michel v. U.S. Customs and Border Prot., et al., No. 3:16-cv-00277, 2d am. complaint at 3 (S.D. Cal., Jun. 29, 2016).

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.

For over 20 years, board-certified drug crime attorney Michael J. Brown has advocated on behalf of defendants facing state and federal charges in West Texas courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation to discuss your case.

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

Marijuana Use Is a Human Right, According to Ruling from Mexico’s Supreme Court, Texas Criminal Lawyer Blog, April 1, 2016


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