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

Legal Issues

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:

• Donut crumbs are meth.
• Over-the-counter pain medication is crack cocaine.
• Cotton candy is meth.
• A deceased child’s ashes are both/either meth/ecstasy.
• Raw honey is meth.
• An undermined substance is heroin/fentanyl.
• Bird poop on a CAR HOOD is cocaine.
• Baking soda is cocaine.
• Tea leaves are marijuana.

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.

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