Prosecutor Tosses Charges Against Driver After Field Drug Test Claims Bird Poop On A Car's Hood Is Cocaine

from the dollar-store-drug-warriors dept

Maybe with enough lawsuits, this nation of zealous drug warriors will finally abandon field drug tests. The tests are cheap, which makes them popular with law enforcement agencies. But they sure as hell aren't accurate.

A field drug test declared a small crumb of an over-the-counter pain relief medicine to be crack cocaine, resulting in the wrongful jailing of a woman for three weeks. Thanks to this faulty field test, this person lost her home and her job.

A man received a $37,500 settlement for an arrest predicated on a drug field test that turned Krispy Kreme donut crumbs into methamphetamine. In the same state (Florida), another man was arrested after drywall residue was declared to be cocaine by the $2 test.

Despite a plethora of evidence showing these tests routinely misread legal substances as illegal, law enforcement continues to use them. The low cost is one factor. The desire to turn routine traffic stops into fishing expeditions is another. It's a faster, cheaper way to obtain probable cause than calling for a K-9 unit -- an option that's been constrained by bit by the Supreme Court's Rodriguez decision.

In this case, covered by Radley Balko, a Georgia college football player has just seen charges dropped after officers used a field drug test to declare bird poop on his vehicle's hood to be cocaine. The story was first reported by Travis Jaudon of the Savannah Morning News:

The possession of cocaine charge has been dropped against Georgia Southern quarterback Shai Werts, the prosecutor in Saluda County, South Carolina, told the Savannah Morning News on Thursday, Aug. 8.

Al Eargle, the Deputy Solicitor for the 11th Judicial Circuit which includes Saluda County, told Werts’ attorney, Townes Jones IV, that these kinds of charges would not be pressed on “his watch,” Jones said.

South Carolina Law Enforcement Division (SLED) tests were conducted on the substance samples collected from the hood of Werts’ 2016 Dodge Charger, but the results confirmed that no controlled substance was present in the samples.

The entire arrest was captured by a Saluda County deputy's dashcam, allowing viewers the chance to observe trained professionals come to the conclusion that the most likely substance on a vehicle's hood is illegal drugs. Once that conclusion is reached, the tests are deployed and give the deputies all they need to arrest the driver.

Fortunately, this debacle ended with just an arrest. Werts has been reinstated to the football team after passing a drug test. The disruption to his life was minimal, thanks mainly to a prosecutor who decided to escalate lab testing of the substance found on the hood of Werts' car, rather than sit on it until a guilty plea was secured.

Werts didn't get much help from his lawyer, as Balko points out. His lawyer claims the officers were well within the law to do everything they did, so Werts shouldn't even ask for an apology for his arrest. When you let law enforcement walk away from the stupid stuff they do, it makes it that much easier for them to continue doing stupid stuff.

And the stuff they did here is indeed stupid. From Balko:

Do the officers who pulled Werts over really believe that cocaine would remain on the hood of a car after that car was driven at 80 miles per hour? What manner of consuming cocaine would cause the cocaine to stick to the hood? I’m having a difficult time imagine any interaction with the drug that would result in portions of it being stuck to the hood of a car in a manner that could withstand wind at 80 miles per hour.

Given all of that, why would these deputies see a white substance on the hood, and immediately assume it was cocaine, rather than the dozen or so other more likely explanations? Have they ever mistaken bird poop for cocaine before? Why would they decide that this was a substance that needed to be tested at all?

Fourth Amendment jurisprudence is driven by "reasonable officer" standards. There's probably a lawsuit in here, even though it would have very little chance of making it past a motion to dismiss. The questions Balko asks are the questions judges need to ask if Werts decides to sue: is arriving at the conclusion the substance on the hood of a vehicle clocked doing 80 mph is most likely drugs a "reasonable" conclusion? It certainly doesn't seem to be.

This latest failure of field drug tests isn't going to drive the last nail into their flimsy coffin. But it at least swings the hammer a bit.

Filed Under: bird poop, cocaine, drug tests, field test, police, saluda county, shai werts, sled, south carolina


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  • identicon
    Anonymous Coward, 16 Aug 2019 @ 3:54am

    Given that finding "drugs" gives law enforcement leave to rob people's money, I don't expect they're all that worried about the false positives.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 4:00am

    Only Barry Allen could do his cocaine off the hood of a car going more then 55 mph

    reply to this | link to this | view in chronology ]

  • identicon
    David, 16 Aug 2019 @ 4:09am

    So what if the bird poop legitimately tested positive?

    I mean, birds eating caterpillars feeding on coca leaves is not impossible. And don't get me started on hemp as a component of bird seeds. What responsibility does a driver have for ensuring that the birds shitting on his car's hood test negatively for drugs? And anyway, what responsibility does a driver have for ensuring that neighboring kids are not drawing lines off his car?

    reply to this | link to this | view in chronology ]

    • identicon
      Little Timmy Nextdoor, 16 Aug 2019 @ 7:45am

      Re: So what if the bird poop legitimately tested positive?

      David,

      Please DONT KINK SHAME ME!!!

      I can't get OFF without hitting a huge rail off of a college football players hood.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 16 Aug 2019 @ 4:22am

    On top of what's already been stated - let's say that the cops were right and they'd found actual cocaine that had withstood 80mph. Wouldn't the driver have plausible deniability anyway, given that nobody has the same kind of control of what happens to the outside of the car as they do to the inside?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 16 Aug 2019 @ 4:33am

    'Failed' is a funny way to spell 'working great'

    When the drug test/dog is the means to secure a justification for a search the fact that false positives crop up left and right isn't a bug it's a highly desirably feature.

    When the goal is being able to search as much as possible and/or secure a plea deal its not surprising that a police don't care how often false positives crop up, because in that situation the more hits the better.

    reply to this | link to this | view in chronology ]

  • identicon
    Scott, 16 Aug 2019 @ 6:45am

    One simple change would make all this nonsense go away: A federal Looser Pays law.

    If they can't make the case and obtain a conviction, then the authority responsible for the failure must make the victim of their incompetence whole. This would include all attorney fees/costs, lost wages, and any other consequential damages.

    reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 16 Aug 2019 @ 8:03am

      Re:

      We certainly do need more ability to force those who bring ridiculous charges to court to pay, but just making the loser always pay is a terrible idea and extremely unfair and unjust.

      This needs to only happen when whatever the one bringing the charges is saying or trying to do is obviously wrong. But proving something is obvious is a very difficult thing to do.

      Again not saying we don't need improvement in this area. Only that what feels right to the victim isn't actually ok.

      reply to this | link to this | view in chronology ]

      • identicon
        TFG, 16 Aug 2019 @ 9:01am

        Re: Re:

        A very simple fix: outlaw field tests.

        Less simple fix: rigorous standards to which field tests must apply.

        Much less simple fix: flip police culture to be one of caretaking rather than war mindset.

        Also much less simple fix: hold law enforcement to exacting standards of behavior, do away with allowing them to be ignorant of the law, and come down hard on all instances of abuse of power.

        Unless and until this happens, police may as well default to an enemy of the general citizenry.

        reply to this | link to this | view in chronology ]

        • icon
          mhajicek (profile), 17 Aug 2019 @ 12:01am

          Re: Re: Re:

          Easier fix. End the drug war.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 17 Aug 2019 @ 2:00am

            Re: Re: Re: Re:

            Well, that too. It’s amazing how many of the US’s current problems have their roots in that.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 18 Aug 2019 @ 9:31pm

              Depends on which side of the badge/bench/bars you're on

              It's all a matter of perspective. What's a huge problem to some(the general public) is a massive boon to others(the prison system, prosecutors/judges, government agencies...).

              reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Aug 2019 @ 1:59am

          Re: Re: Re:

          Field tests have their place, and it’s certainly better than one alternative of anyone “suspicious” that’s pulled over being dragged to a clinic.

          But the limitations need to be very clear and not used as anything other than being taken to a real testing facility as quickly as possible

          reply to this | link to this | view in chronology ]

      • identicon
        Scott, 16 Aug 2019 @ 12:34pm

        Re: Re:

        I agree with you in principal. However, the victim is still out all those costs (not just $). Should not the "authority" be responsible for their innocent/unintended errors, just as you or I would be?

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 19 Aug 2019 @ 5:57am

        Re: Re:

        "...but just making the loser always pay is a terrible idea and extremely unfair and unjust."

        Not really. Pushing a case to a court of law SHOULD require the accusing party to be VERY certain.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 19 Aug 2019 @ 6:49am

          Re: Re: Re:

          Pushing a case to a court of law SHOULD require the accusing party to be VERY certain.

          The problem is, even if you're very certain, you could never be 100% certain of victory. So do you risk taking Megacorp to court for the terrible thing they did to your family, knowing that they're going to rack up hundreds of thousands or even millions of dollars in attorney and court costs that you would be responsible for if you do lose? Loser pays is probably better than what we have, but it's not without its problems.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 20 Aug 2019 @ 1:18am

            Re: Re: Re: Re:

            "So do you risk taking Megacorp to court for the terrible thing they did to your family, knowing that they're going to rack up hundreds of thousands or even millions of dollars in attorney and court costs..."

            True enough. You'd need to fix a way to somehow level that playing field first.
            But...right now, right here, that's what is going to happen if you take a megacourt to court anyway, unless you can somehow link up in a class action suit where plenty of people help pay the costs and a lot of lawyers run a few pro bono hours.

            reply to this | link to this | view in chronology ]

    • identicon
      Robert Beckman, 16 Aug 2019 @ 9:13am

      Re: better version of loser pays

      A better way to do it is to return to a three verdict system like some of the colonies had, but with added meaning for the prosecuting entity.

      Guilty: same as now

      Not Proven: same effect as not guilty, but all prosecution expenses (including police investigations) are payable to the defense to ensure that the citizen is on even footing with the government, otherwise a dedicated prosecutor can just paper you to death like in civil litigation.

      Not Guilty: Prosecution pays ALL defense expenses, including lost wages, costs to recover credit rating, etc.

      This model negates the incentive to prosecute edge cases, as any failure to convict gets paid by the prosecutor, and if the jury thinks they’re totally wrong they get hit with effective damage awards.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 16 Aug 2019 @ 6:52am

    Obviously

    It's obvious to me that the driver was smuggling drugs in birds. He should get nailed for animal rights violations as well!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 6:55am

    it's never going to be over for Shai Werts

    Every time he fills out a job application, on the question:
    "Have you ever been arrested for a felony?", he'll have to answer "Yes"

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 16 Aug 2019 @ 9:01am

      Re: it's never going to be over for Shai Werts

      All job applications I have seen ask if you have been convicted, rather than arrested.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 16 Aug 2019 @ 9:06am

        Re: Re: it's never going to be over for Shai Werts

        Ok, correction, all private jobs where a federal background check is not required. A few public positions and a retirement home have asked about arrests. But those have different due diligence standards, and they are rarely the death blow it is in the private sector.

        reply to this | link to this | view in chronology ]

        • icon
          R.H. (profile), 16 Aug 2019 @ 2:45pm

          Re: Re: Re: it's never going to be over for Shai Werts

          In the finance or insurance fields you'd have to report this in most states and we'd probably have a laugh about it in the interview (assuming that it was far enough in the past). Like you said, it's not a "death sentence" though.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Aug 2019 @ 4:10pm

          Re: Re: Re: it's never going to be over for Shai Werts

          Ok, correction, all private jobs where a federal background check is not required.

          What kind of "unicorns and rainbows" world do you live in? The real world is a little different.

          The company I work for won't even interview someone if they've ever been arrested, felony or not. And that attitude doesn't stop after someone has been hired, either. The other day someone was fired because they were served a subpoena at work (nothing to actually do with work) the day before. And if you get actually arrested they won't even let you back in the building to get officially fired. You have to call in to find out why you can't get in and then they'll tell you're fired.

          they are rarely the death blow it is in the private sector.

          Unless you are one of the peons who has to actually work for a living, that is.

          reply to this | link to this | view in chronology ]

          • identicon
            TFG, 17 Aug 2019 @ 10:53am

            Re: Re: Re: Re: it's never going to be over for Shai Werts

            It sounds like you shouldn't be working for that company. I find myself interested in knowing the name of said company so I can ensure I never have anything to do with them.

            reply to this | link to this | view in chronology ]

  • identicon
    dadtaxi, 16 Aug 2019 @ 7:07am

    probable cause

    I am deeply suspicious that the "cocane found" on the hood of the car was just a pretext for the cops so they can justify searching the rest of the car. Presumably in the hope finding other "legitimate" reasons to charge him, and in which case then the "cocaine found" would quietly be dropped during the course of the plea deal.

    Of course finding nothing else and having oodles of cash and a highly paid lawyer to hand meant that that test, arrest and probable cause didn't just conveniently disappear as it might otherwise have done - as i suspect happened in many many other cases.

    Of course it's all just a speculation on my part - but I kinda also suspect there will be no investigation on the role and practices in this department as to how may historical "bird poop" tests have also been made - let alone come back positive.

    reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 16 Aug 2019 @ 8:12am

      Re: probable cause

      having oodles of cash and a highly paid lawyer to hand

      I'm sorry, where did you see evidence that either of these things were present? I don't see anything in the article that even hints at this. All it says is that the Deputy Solicitor had the stuff tested quickly after some lawyer for Werts talked to him.

      In fact the lawyer seems to have just been a free one provided by the state considering his statements after things were done. Why would you assume money was a factor in this case?

      reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 16 Aug 2019 @ 2:49pm

      Re: probable cause

      I don't think this kid had cash, he just had his innocence (of the crime) and local name recognition (college QB isn't a bad gig). That plus the current political climate made the DA think twice about going for the plea bargain.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 7:28am

    Third Party Liability

    I don't get why the makers of those test strips don't get sued into wearing a barrel given their damages to those from their sheer inaccuracy or misleading marketing (it actually takes say 9 test strips to narrow it down to actually probable illegal substances).

    Did some congresscritter shield them or something?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 10:28am

    That is some damn fine police work.

    See suspicious person, because cops only pull over suspicious people, test any available substance, and roll the dice on the test.

    Make America Safe Again!

    ===========

    In all seriousness, that has to be the dumbest thing I’ve ever seen. If it wasn’t for the serious consequences, I’d think I was watching a prank video or something.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 12:31pm

    But he could have sneezed...

    I mean he could have been doing lines off his hood and then accidentally sneezed, expelling coke and snot all over the hood... which would stick (but wouldn't look like bird poop)...

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 16 Aug 2019 @ 1:15pm

    how many

    Rich people get away with it??
    Why not everyone else??

    reply to this | link to this | view in chronology ]

  • icon
    +Eric (profile), 16 Aug 2019 @ 3:28pm

    The Best Part

    The best part of all this in my opinion is when the cop asks him why he tried to run. Not saying this guy did run or whatever..... but:

    I dunno, maybe cause he knows cops pull major bullshit like claiming bird sh** is cocaine? Seems a really good reason to run.........

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 3:45pm

    A "reasonable" conclusion?

    When the judge is part of the same system as the cop, anything the cop concludes will likely be "reasonable".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2019 @ 7:44pm

    Bird poop is cocaine? To be fair, I've always that out_of_the_blue was always on crack.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 19 Aug 2019 @ 6:51am

    I can't help wondering how this would have gone down if he were a white football player.

    reply to this | link to this | view in chronology ]


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