No Immunity For Cops Who Used A Field Drug Test To Turn Stress Ball Sand Into Cocaine

from the magic-8-ball-but-for-taking-away-people's-liberty dept

Getting probable cause is easy, especially when you have accomplices. Law enforcement loves drug dogs, which give them the permission they need to engage in warrantless searches. All a dog has to do is "alert"... or almost "alert"... or be presented in sworn testimony as feeling ways about an odor. Permission obtained. Searches permitted.

Another favorite method for securing permission for seizures, arrests, and searches without a warrant is the field drug test. The tests are cheap, which makes them a popular law enforcement tool. They're also notoriously inaccurate. That also makes them popular with law enforcement. Cops aren't interested in successful prosecutions. They're interested in arrests and warrantless searches. And these cheap tests -- which are often wrong about the presence of drugs -- are nearly as popular as drug dogs.

Here's just a short (and very incomplete) list of the conclusions reached by cheap, unreliable field drug tests deployed by cops:

Being wrong a lot doesn't stop cops from using these tests. Nor does it stop prosecutors from moving ahead with prosecutions backed by nothing more than a "test" that should be considered as fanciful as anything sold in the back pages of comic books.

It's time to add to field drug test's lousy track record of misidentifying substances. Fortunately, the Eleventh Circuit Court of Appeals has sided [PDF] with the person arrested for carrying a legal substance while (allegedly) jaywalking. (via Reason)

Everyone agrees that, on the evening of October 10, 2015, Goldring was walking in Midtown, Atlanta; Officers Henry and Restrepo initially arrested her for jaywalking; they took her to the police station; at the police station, Officer Henry field tested the powdery contents of a stress ball found in Goldring’s purse; and the officers got a warrant for Goldring’s arrest for jaywalking and trafficking in cocaine.

Other facts remain disputed. The plaintiff, Julius Goldring, swears she never jaywalked. Instead, she was waiting on the corner with some friends when the officers approached her.

Here's the undisputed outcome of that interaction:

After the officers stopped Goldring, Officer Restrepo frisked her, searched her purse—to which Goldring consented—and found a stress ball. It was “a regular stress ball” with a metal clip. Goldring told Officer Restrepo that it was just a stress ball and said he could open it. Officer Restrepo cut the ball open, revealing a white “powdery, sandy kind of substance.” The officers suspected that this powder was cocaine but they weren’t sure—in Officer Restrepo’s words, there are “a jillion powders that could be white.” The powder inside Goldring’s stress ball was just sand.

The officers grabbed a NARK II test and attempted to determine whether the stress ball sand was actually something else. This did not go well, according to Goldring.

Goldring witnessed Officer Henry perform the field test. He “looked frustrated,” “huffed and puffed” throughout the test, and shook the pouches containing the powder “with aggression like he was mad.” Although Officer Henry used multiple test kits, Goldring saw that the liquid inside never changed color. She testified that a third officer saw what Officer Henry was doing and “kept telling him that it was nothing” and was “not a drug,” referring to the powder in the test pouches, and told Officer Henry to “[g]ive it up buddy.”

Officer Henry, of course, disagrees with this assessment of his drug test and drug-testing skills.

As to the field test, Officer Henry testified that he performed the test twice—both times crushing the three ampoules simultaneously. The liquid then turned a “bluish-purple.” Officer Henry thought this was a “faint positive,” incorrectly believing that “if it’s darker than pink, then it’s positive,” while “if it just showed pink” it was negative. Officer Restrepo testified that he didn’t watch the test and Officer Henry later told him the result was positive. But in an internal affairs report, Officer Restrepo stated that Officer Henry showed him the test result—a “faint positive.”

Not all that persuasive. At least not to Goldring or the Appeals Court. But it was persuasive enough to Officer Henry that he arrested Goldring and searched her belongings. He got her charged with trafficking cocaine, which led to a $25,500 bail assessment. Goldring couldn't make bail so she sat in jail… for five months. A lab test showed the substance wasn't cocaine November 17, 2015, a little more than a month after the October 10th arrest. But prosecutors didn't dismiss the charges until March 2018, unjustifiably extending her detention in jail for a crime a crime lab said she didn't commit.

Both officers tried to escape the false arrest and malicious prosecution allegations. The court says they can't.

Officer Restrepo also argues that his interaction with Goldring was limited to her warrantless arrest and he didn’t sign the warrant application. Thus, he maintains that Goldring’s malicious prosecution claim against him fails because he did not initiate a criminal prosecution against her. We disagree. Although Officer Restrepo didn’t remember whether he helped write the warrant application, Officer Henry testified that Officer Restrepo wrote the narrative for the warrant application and spoke to the magistrate judge about it. This is summary judgment evidence from which a reasonable jury could find that Officer Restrepo had assisted in drafting the warrant application and getting it signed by the magistrate judge. Officer Restrepo was involved in initiating the prosecution against Goldring.

As for Officer Henry, he has not advanced any arguments that he did not initiate a criminal prosecution against Goldring. Nor could he because the record is clear that he signed the affidavit supporting the arrest warrant presented to the magistrate judge.

The court says there's not enough evidence at this stage to determine who's telling the truth about the alleged jaywalking. Conflicting narratives should be sorted out later, perhaps even by a jury. The same goes for the drug trafficking charge. Officer Henry says the field drugs tests were positive. The plaintiff says the cops lied about the drug test results on their warrant application and arrest paperwork. No qualified immunity on either court. This goes back down to the lower court for more examination.

Five months is a long time to spend in jail for pre-trial detention. It's absolute insanity for someone to spend four months in jail after a lab test has determined the substance you were arrested for possessing was actually the legal substance you claimed it was. Hopefully, this rejection will lead to a sizable settlement or one of those judicial unicorns: a jury trial. The cops screwed up, made inaccurate claims about what they'd observed, and a prosecutor ran with it. They all need to be held accountable, even if it means the public will ultimately be paying for their actions.

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Filed Under: 11th circuit, 4th amendment, cocaine, drug test, field drug test, probable cause, qualified immunity, sand, warrant


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  • identicon
    Bobvious, 24 Nov 2021 @ 2:09pm

    Turnabout is fair play

    Send those morons to jail.

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

    • identicon
      Kitsune106, 24 Nov 2021 @ 3:01pm

      Re: Turnabout is fair play

      Nah. Use the same test on them in court.

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

      • icon
        That Anonymous Coward (profile), 24 Nov 2021 @ 3:05pm

        Re: Re: Turnabout is fair play

        He hadn't even ever read the directions & didn't know how to use the test correctly.

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

        • icon
          That One Guy (profile), 24 Nov 2021 @ 8:00pm

          Re: Re: Re: Turnabout is fair play

          Give he apparently used multiple tests and was getting increasingly angry it sounds like it's even worse than incompetence and he was angry that the test wasn't giving him the result he wanted until he just fell back to lying.

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

  • identicon
    Anonymous Coward, 24 Nov 2021 @ 2:40pm

    Bird poop on a CAR HOOD is cocaine.

    Sure, it may have seemed silly then, but now the criminals are aware of the possibility. Just imagine how much cocaine one could transport with an exceptionally shitty car hood and maybe an urn.

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

  • identicon
    Anonymous Coward, 24 Nov 2021 @ 2:43pm

    I'm confused by the dates in the article. Arrested October 2015, charges dismissed March 2018. That's 2 years and 5 months, not just 5 months.

    Were the charges dismissed March 2016, or was she in jail for 2 years and 5 months?

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

  • icon
    Keyser Soze (profile), 24 Nov 2021 @ 3:29pm

    More and more...

    Recently in Florida a cop was sentenced to 12 years for planting drugs in several people car after he stopped them for some lame routine thing. Most of the people plead guilty to the charges because of how the system works. Plead guilty and get a few years of probation or plead innocent and fight it yet if you lose it will be several years in prison. Since the officer will be believed by 99% of the juries out there who wants to risk 5-10 years in prison to fight for your rights over 3-5 years of probation to get shafted even more by the system.

    A few years ago a Baltimore cop was busted on body cam planting drugs in a car. It was an embarrassment to the police force is what the captain said at the time. A year later the cop still works for Baltimore PD yet is only a desk cop.

    Earlier this year a body cam video from an NYC office has him planting weed in a passenger of a vehicle things. The person that was arrested has already paid his fines and done his probation when the video got leaked. The real problem is the 2 weeks before the video was actually filmed not leaked, filmed the 2 officers involved got busted in court on a different body cam footage. The judge in that case told the person pleading guilty he will not take the plea from him and he needed to hire an attorney.

    Even myself who was driving through Virginia with my girlfriend's 15 year old daughter. I get pulled over for 81 in a 70 and was in the middle of the pack of cars, I really thought it was strange that the officer goes past the 2 cars behind me that had been there for at least 20 miles and squeezed in behind me with his blue light. Since I drive a black sports car with tinted windows and Texas (where I live) tags I was pulled over felony stop style. While his gun is out, told to put my hands out the window and open the door from outside. Get out with my hands in air and walk backwards. Because I was not thinking and closed my door with my hand got told I will be shot if I bring my hands down again. While I am walking backwards I say that the 15 year old daughter of my gf is in the passenger seat totally freaking out crying, can you please go talk to her and tell her that you are not intending to shoot me on the side of the highway? He actually does and asks her if I had kidnapped her, how long has she known me, does her parents know she is with me.. blah blah.. Everything he should have asked her. Yet he then says to me that 10 over speed limit is criminal reckless driving in Virginia and he usually just writes tickets in leau of bail but since I live in Texas he was not going to be able to say in good faith I would return to Virginia for court. He was going to have to take me in yet 1st we were going to wait on a drug dog to "spot check" my vehicle. To which I said "ok good, there is no drugs in car. I know for fact. But what are you going to do about my gf daughter? You can't arrest her, you can't leave her on side of road. She is terrified of flying alone which that and the fact her moms car was just totaled and has no way to come get her and why I was asked to drive here on my vacation to get her, what will you do with her? He looked at me and no sh!t says "well that does seem to be an issue. Can you give a Georgia address besides your gf? I asked does my mom count? I grew up in Georgia and company transferred me 6 months ago. He said here is your ticket, sign here. Be safe and have a nice day. I wonder what they would have done if I was a minority or if I had not thought of asking what they would do with the 15 year old. He never waited on drug dog. I always have thought that they would have found something even though there was nothing.

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

    • icon
      Scary Devil Monastery (profile), 25 Nov 2021 @ 12:30am

      Re: More and more...

      " I wonder what they would have done if I was a minority or if I had not thought of asking what they would do with the 15 year old."

      Pot odds given your description of the events? You'd have been dead when you reached for that car door and that 15 year old would have grown up utterly traumatized after whatever passes for a system in Virginia put her through the wringer.

      I'd confess to shock and outrage over that story but given the source - the US - all I can say that not ending that trip in the morgue or hospital already makes it a happy ending. Even if your gf's daughter ends up fearful of the police uniform forever after.

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

      • icon
        Bergman (profile), 25 Nov 2021 @ 4:39am

        Re: Re: More and more...

        Or worse, the cop would have opened fire when he closed the car door, accidentally shot the girl to death due to being a bad shot, then charged the driver with her murder for ‘forcing’ him to shoot her under felony murder laws - even though by the letter and spirit of those laws, it’s the cop who would be guilty of murder as the first to commit a felony (aggravated assault).

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

    • identicon
      me, 29 Nov 2021 @ 5:27am

      Re: More and more...

      He would have, the dog would have produced a positive or he would have planted it. The more I hear about Southern Law Enforcement, Florida, Georgia and Virginia in particular, zero trust in any dealing with them.

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

    • identicon
      me, 29 Nov 2021 @ 5:38am

      Re: More and more...

      The case of your GF's daughter reminds me of a case out of Texas, where a teen age girl was left on the side of the road after an alleged fight with her boyfirend. The police found and her, and because she hadn't done anything, he couldn't arrest her, so rather than help her out, as in, take her to the station and help her arrange a ride home, off she goes to the mental hospital, where her parent later literally had to break her out, because the place planned to hold her there indefinitely (As in, until her insurance runs out). Makes for an interesting potential case for human trafficking, putting her in a position where she was exploited by a facility she didn't need to be in. Collusion with the police?

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

  • identicon
    Anonymous Coward, 24 Nov 2021 @ 3:54pm

    Worse than Qualified Immunity is Absolute Immunity

    The prosecutors, when faced with the lab evidence, took 2-3 YEARS to drop the case. That also is inexcusable. Yet prosecutors are given absolute immunity.

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

  • identicon
    Pixelation, 24 Nov 2021 @ 3:56pm

    Officer syas...

    Stressball? Oh crap, I thought she said 8 ball. My bad.

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

  • identicon
    Anonymous Coward, 24 Nov 2021 @ 4:57pm

    Jaywalking is another bullshit crime made up by lobbyists. Cops fucking love it.

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

  • icon
    That One Guy (profile), 24 Nov 2021 @ 8:07pm

    Simple fix that'll never happen

    It would be trivial to solve the problem with bogus tests like this, simply force every single person using/supporting them, from cops to prosecutors, judges to those selling them to all be tested using the exact same type of testing kit they support, with any positives treated as hits for whatever 'drug' it came up as.

    I guarantee that if those using and accepting as valid the drug kits being used here had their livelihoods and freedoms on the line they'd stop considering such kits acceptable evidence on the spot.

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

    • icon
      ECA (profile), 24 Nov 2021 @ 11:15pm

      Re: Simple fix that'll never happen

      test their money,.

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

      • icon
        That One Guy (profile), 25 Nov 2021 @ 3:14am

        Oh if only...

        '... and another positive. So either we accept that a positive result on cash means that the owner is involved with the drug trade to a notable extent and basically everyone here is guilty or a positive result is treated as legally meaningless. Here's your money back Your Honor, so which shall it be?'

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

  • identicon
    Wat To Doo, 25 Nov 2021 @ 2:28pm

    Criminals acting as authorities - by design - low

    See subject. Nuff said.

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

  • identicon
    Yu Betcha, 25 Nov 2021 @ 2:31pm

    Crooks as cops

    Not a spam bot, mister moderator. Second attempt. See subject header

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

  • icon
    Coyne Tibbets (profile), 25 Nov 2021 @ 6:57pm

    If only they could find the right laboratory...

    But prosecutors didn't dismiss the charges until March 2018, unjustifiably extending her detention in jail for a crime a crime lab said she didn't commit.

    Oh, come on! They had a perfectly jusitifiable reason to hold her. They were looking for the laboratory that employs Annie Dookhan for a re-test on the sand in that stress ball.

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

  • identicon
    Glenn, 27 Nov 2021 @ 11:45pm

    Keep making the public pay and maybe, eventually, the public will get behind laws to eliminate the unqualified impunity with which law enforcement breaks the law.

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

  • icon
    Lostinlodos (profile), 29 Nov 2021 @ 1:47pm

    Doggy doggy.

    “Law enforcement loves drug dogs, which give them the permission they need to engage in warrantless searches.”

    Or eat the driver’s Wendy’s. Greedy little pooch.

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


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