Wednesday, September 30, 2015

Criminal Law: Field Drug Tests Under Heavy Scrutiny

By Matt Luka

    It is common in narcotics cases for police to field test a suspicious substance found during a pat-down or search. The United States Supreme Court has held that a chemical test that merely discloses whether a particular substance is a narcotic is not a "search" subject to Fourth Amendment protections. United States v. Jacobsen, 466 U.S. 109, 123-124 (1984). And a "seizure" of a small amount of the substance for testing is constitutionally reasonable. Id. at 125-26.

    Locally, the reliability of field tests has been confronted in a series of reports by Gloria Gomez of Fox 13 News. Gomez recounts the stories of three citizens arrested on drug charges based on false field tests only to have lab results clear them months later. Scientists: Experiments show "dangerous" field drug test problems. (Fox 13 News television broadcast May 14, 2015), available at Although having the charges dropped may have been a relief, there are severe consequences associated with mere fact of an arrest. A person's career and reputation can be irrevocably damaged, and an individual's arrest information often lives online long after the case is closed.

    Gomez observed a series of false positive field tests by Dr. Omar Bagasra, the top research scientist at Claflin University, a lab recognized by the International Association of Chiefs of Police for forensic science excellence. Id. In Dr. Bagasra's experience, he doubts the accuracy of any field drug test. Id. Dr. Fredrik Whitehurst, an FBI forensic scientist for 16 years with a doctorate in chemistry, stated he has "no confidence at all in those test kits." Id. Punk rocker Don Bolles was once arrested for possessing GHB after a field test. Id. A state lab later determined it was soap. Id. Forensic Magazine published a similar article criticizing field drug tests titled Field Drug Tests Confuse Candy for Meth, Cause Serious Concern

    Field testing is used to support arrests, in probation revocation proceedings, in support of search warrants, and as evidence of guilt. In Smith v. State, 771 So. 2d 1189 (Fla. 5th DCA 2000), the defendant's drug paraphernalia conviction was supported only by the arresting officer's testimony that an item contained a residue that field tested positive and that the item was a device typically used as drug paraphernalia. Id. at 1192; see also Townsend v. State, 781 So. 2d 541, 542 (Fla. 5th DCA 2001).

    The field test takes on greater importance when the field test uses up or destroys the sample during testing. The state must introduce the substance into evidence unless excused by its destruction during testing. Peterson v. State, 841 So. 2d 661, 662 (Fla. 4th DCA 2003) (citing G.E.G. v. State, 417 So. 2d 975, 977 n.2 (Fla.1982)). However, in Peterson, the court found the state "introduced the cocaine into evidence" where the state introduced a pipe that exhibited a blue color, and the officer testified that the blue color resulted from his test of cocaine. Id. Even if the narcotic is unavailable, sufficient evidence exists for conviction on a possession charge if a chemist or expert testifies that he or she tested the substance and the test yielded positive results. Fleming v. State, 82 So. 3d 967, 970 (Fla. 4th DCA 2011). The testimony of an arresting officer and an expert to establish the reliability of a field test could potentially meet that standard.

     If you would like to contact Gloria Gomez to discuss one of your cases or would like more information on this topic, she can be contacted at