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.
The plaintiffs note that the hibiscus plants were flowering at the time, which the marijuana plant does not do. Police nevertheless obtained a search warrant, leading to a raid by “approximately a dozen police officers pointing assault rifles.” Id. at 6. Police allegedly handcuffed the wife and refused to listen to her explanations about the hibiscus plants. A police sergeant and “self-proclaimed marijuana expert” reportedly identified the plants as marijuana. Id. at 8. The husband was also arrested when he arrived home.
The plaintiffs claim they were kept separate for several hours while police searched the house. Eventually, the sergeant allegedly informed them that he no longer believed the plants were marijuana, but he was seizing them for laboratory testing. No criminal charges were ever filed. The lawsuit asserts causes of action for various intentional torts, as well as civil rights claims under 42 U.S.C. § 1983.
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.
Michael J. Brown, a board-certified marijuana crime attorney, has more than 20 years of experience defending people charged with offenses in West Texas state and federal courts. To schedule a confidential consultation with a skilled and knowledgeable advocate for criminal justice, contact us today at (432) 687-5157 or online.
More Blog Posts:
Federal Judge Rules on Homeowners’ Claim that Tea Leaves Did Not Provide Probable Cause for Drug Raid, Texas Criminal Lawyer Blog, May 25, 2017
Federal Law Enforcement, Courts Consider Legality of Ayahuasca and Related Products, Texas Criminal Lawyer Blog, May 25, 2017
Texas Court of Criminal Appeals Identifies Standards for Determining if Laboratory Technician’s Mishandling of Evidence Renders Evidence False in Drug Cases, Texas Criminal Lawyer Blog, January 30, 2014