Investigation Shows Faulty Drug Tests Resulted In Hundreds Of New York Prisoners Being Wrongly Punished

from the once-you're-inside,-you're-no-one dept

The justice system may say lofty things about debts to society or rehabilitation, but when it all comes down to it, a person in jail is just something to be processed. Whatever happens to them is supposedly well-deserved. If you can't do the time, don't do the crime. This catchy phrase also refers to pretrial detainees who haven't been convicted of any crimes but who simply don't have the means (or the judicial permission) to spend their pre-trial days out in the open.

The grist goes in the mill and the less the government can spend doing it, the better. The ends matter. The means don't. The United States is the land of the free. Yet somehow, our incarceration rate is higher than countries where human rights supposedly matter less, like Cuba, Turkey, and Russia.

Putting people in jail is easy. Cops engage in pretextual stops. Then they deploy handler-pleasing drug dogs or, worse, cheap field drug tests that frequently misidentify legal substances as illegal -- cotton candy, donut crumbs, bird feces, etc.

Getting jailed doesn't change the math much. Jails rely on cheap drug tests to ensure inmates and parolees are staying clean. But they don't seem to be much more accurate than the $2 tests favored by law enforcement officers out in the field.

Jailed people's freedom may have already been taken. But their return to freedom can be delayed (or denied) due to inaccurate drug tests administered by jails and prisons. The New York Inspector General investigated drug tests used by New York jails and prisons. And those tests aren't much better than the super fallible field tests used to put people behind bars. More than 1,600 prisoners were punished, with 140 sent to solitary confinement -- all based on nothing more than unverified in-prison drug tests. (h/t CJ Ciaramella)

The end result of these faulty tests? Unjustified punishment and loss of freedoms for people already subject to plenty of punishment and loss of freedoms. The report [PDF] opens with a handful of representative cases:

A woman at Albion Correctional Facility, who had never tested positive for drug use during her then more than two-year incarceration with DOCCS, asserted that a January 2019 drug test wrongly indicated that synthetic cannabinoids had been detected in her urine sample. Because of this and a subsequent Microgenics test, she was confined to her cell for 40 days and solitary confinement for 45 days. She lost her prison job and coveted housing assignment, and lost privileges including recreation time, receipt of packages, and telephone use for a total of 105 days. Additionally, she lost the privilege to participate in DOCCS’ Family Reunion Program and therefore was denied the continuation of visits with her three children.

[...]

A woman who upon her admission to DOCCS’ Shock Incarceration Program at Lakeview Shock Incarceration Facility in August 2019 asserted that a drug test wrongly indicated that synthetic cannabinoids had been detected in her urine sample. Because of this and a subsequent Microgenics test, she lost privileges including visitation, recreation time, receipt of packages, and telephone use for a total of 30 days. Most notably, she was removed from the Shock program, which if she completed without incident would have made her likely eligible to be released within six months. Instead, she was not released until September 2020.

[...]

In March 2019, an incarcerated individual questioned a Microgenics representative about the reliability of the preliminary drug screening tests. This individual, who denied using buprenorphine, had never failed a urine screening test while incarcerated with DOCCS. The Microgenics representative advised the individual that the test was 99.9 percent accurate, and he could not recall ever seeing a false positive result. The individual was found guilty and ultimately sentenced to 40 days of cell confinement, 75-days loss of recreation and package, telephone, and commissary privileges, and recommended loss of two months of good time.

The last anecdote identifies one of the culprits behind this massively broken system: Microgenics and its representatives. The company's own testing instructions require confirmation using other testing methods. That didn't happen. And it didn't happen because the company's reps were willing to lie to inmates and prison guards. And incarceration officials were willing to use an inaccurate test because it apparently does not matter to them what happens to incarcerated people.

Two people were directly responsible for the misery of hundreds of inmates subjected to additional punishments for violations they didn't commit.

This decision to forgo confirmatory testing of Microgenics’ drug screening tests was largely promoted by just two individuals—the then administrator of the Incarcerated Individual Drug Testing Program and a Microgenics salesperson. Although neither the program administrator nor the salesperson had the education or training to conduct the necessary legal and scientific reviews required for a decision of this magnitude, they also revised DOCCS’ [Dept. of Corrections and Community Supervision] drug testing policy to support the use of Microgenics systems. Moreover, DOCCS provided no evidence of any scientific evaluation or substantive legal review of this matter.

There were early indicators the tests were flawed and could return false positives. This was ignored and buried.

In August 2019, the associate commissioner, while reviewing complaints of false drug test results, provided an outside laboratory with urine samples from six incarcerated individuals who had tested positive for buprenorphine using Microgenics’ drug screening tests. The outside laboratory found no detectable buprenorphine in five of the six samples. However, the associate commissioner took no action to remedy the matter and claimed that he did not recall if he had reported the testing errors to the acting commissioner or other executives.

That's maybe the worst news. There's more bad news bundled with it. DOCCS apparently left this in the hands of Microgenics and the associate commissioner. The commissioner ignored state laws when acquiring the services of Microgenics. Personnel were never properly trained how to administer the tests or (obviously) verify test results. In addition, testing officers routinely failed to enter information into the disciplinary tracking system and never consulted medical staff about test results or substances that might register false positives. The latter occurred despite officers being trained to do so and required to do so by policy.

The rest of the problem was Microgenics, which actively covered up its own failures.

The investigation found that Microgenics failed to disclose to DOCCS issues it had discovered with its urinalysis tests, and Microgenics representatives provided incorrect and misleading information during DOCCS’ disciplinary hearings. Indeed, when Microgenics learned that its buprenorphine test had produced four false positive results when testing six urine samples from DOCCS incarcerated individuals, it did not advise DOCCS of these results. And when Microgenics internal research revealed that one of its drug tests was susceptible to cross-reactivity with a common medication and another substance and might thereby produce false positive results, Microgenics again did not advise DOCCS of this fact. Moreover, when Microgenics representatives provided responses to questions asked by incarcerated individuals during disciplinary hearings, the information provided was sometimes misleading and incorrect. In fact, the Inspector General found while reviewing approximately 30 disciplinary hearing recordings that Microgenics representatives never advised incarcerated individuals that its drug screening tests required confirmation testing by more specific alternate methods.

To its credit, the New York Department of Corrections acted quickly when made aware of these issues. It reversed punishments, expunged bogus violations, and made corrections to confinement records. It also ended its contract with Microgenics. Moving forward, tests like these will be backstopped by additional tests not reliant on relatively cheap urinalysis test kits. The only problem with these remedies is that half of those were in place to begin with (confirmation of test kit results, documentation of false positives). They were just ignored, both by the administrator in charge of testing and the company DOCCS, however briefly, chose to do business with. This is the kind of thing that happens when those in charge of incarcerating people believe the people they're overseeing are less human than people on the outside. Until that attitude changes, the steady stream of injustices inflicted on imprisoned Americans will never slow.

Filed Under: drug tests, evidence, new york

Man Sues After Field Drug Test Says His Daughter's Ashes Are Meth And Ecstasy

from the if-prosecutors-have-any-shame-at-all,-they'll-start-tossing-some-convictions dept

Cops like cheap field drug tests. They don't like them because they're accurate. They like them because they're cheap. And since you get what you pay for, they're way cheaper (in the long run) then sending for a drug dog.

Field drug tests are probable cause at $2 a pop. They're even more unreliable than drug dogs when it comes to correctly identifying drugs. That's why some prosecutors -- the nominal best friends of law enforcement -- are refusing to accept plea deals for drug charges stemming solely from field drug tests.

Field drug tests have said donut crumbs, cotton candy, and honey are methamphetamines. They've said bird poop on a car's hood (!!) and bog standard aspirin are cocaine. Whatever a cop imagines to be drugs can usually be "confirmed" by the test kits they carry with them. Once the vial says it's drugs, the cops are free to search, seize, and arrest.

Cops don't need to be this wrong about drugs. But there's no penalty for being this wrong. So, it continues. Prosecutors may have to drop a few cases when the drug lab says the supposed drugs aren't actual drugs, but plea deals tend to go into place before labs get around to testing the evidence. And that's if the evidence even makes its way to a lab. Cops aren't the best at paperwork, which is convenient when it's their word against yours. Even if a cop gets sued for turning non-contraband into contraband and drug charges, they're usually indemnified by the city they work for or granted qualified immunity for relying on what they thought was actual science.

And, because no one seems too interested in ending the reliance on unreliable drug tests, this is the sort of travesty we've come to expect.

Newschannel 20 and FOX Illinois obtained new body camera video of the incident sparking Dartavius Barnes to sue the City of Springfield.

In the suit, Barnes claims his vehicle was unlawfully searched on April 6, 2020 when he was pulled over near Laurel and 16th Streets in Springfield.

He says officers placed him in handcuffs while they searched his vehicle without consent, valid warrant, or probable cause.

During the search, Barnes says officers took a sealed urn of his daughter's ashes, unsealed it, opened it without consent, and spilled out the ashes.

If you think that's terrible, just wait for the backstory. Barnes' daughter Ta'Naja Jones was only two when she died. And she may have been killed. The girl's mother and her current boyfriend were both arrested on murder charges.

The ultimate insult to Ta'Naja Jones and her father happened here. Ta'Naja Jones' final resting place wasn't in the urn Barnes kept in his car. It was in a field drug test that officers performed because they just couldn't bring themselves to believe it might be the last remains of a loved one.

According to law enforcement's favorite faulty test equipment, the ashes of Ta'Naja Jones were possibly ecstasy. And that conclusion was reached after the ashes failed to test positive for cocaine.

An officer presented the officer whose body camera was rolling with a narcotics test kit.

"I checked for cocaine, but it looks like it's probably molly," the officer said.

"X pills," the other added, citing the street name for ecstasy.

In the end, the cops decided the ashes were a combination of meth and ecstasy because that's how drug users carry their drugs: all mixed together in a single container. What even the fuck.

Field drug tests allow cops to work backwards from their conclusions. If it doesn't test positive for one drug, it's probably some other drug. And if it doesn't test positive for anything, it might still be drugs because sometimes drugs are carried in containers. "Based on training and experience" and all of that horseshit. The stuff that says criminals sometimes act like normal non-criminals. And if criminals act like non-criminals on a regular basis, every non-criminal is guilty until proven otherwise.

Barnes has sued [PDF]. It's a short lawsuit and it looks like it will be an uphill battle to win. Barnes admitted to having marijuana in the car and apparently consented to a search. The end result was this horrendous violation of his daughter's remains, but everything up to that point was "reasonable" enough (utilizing the courts' definition of this word rather than the definition citizens use) that it will be hard to prove the officers crossed Constitutional boundaries.

The problem here is the field drug tests and the officers believing they can actually positively identify drugs with them. They were "reasonable" to rely on the drug test results because everyone who benefits from the use of faulty tests told them the tests were reliable, even when they're obviously not. If a child's ashes are not just one, but two different illegal substances, anything can be anything whenever a cop wants it to be something.

Filed Under: dartavius barnes, drug tests, evidence, field drug tests, prosecutors

Drug Tests Administered By Prison Staff Aren't Much Better Than The Terrible Ones Deployed By Cops

from the zero-incentive-to-solve-the-problem dept

Faulty drug tests deployed by law enforcement continue to ruin lives. Usually, it's cheap field tests used by officers during traffic stops that turn legal substances into illegal substances, resulting in hefty criminal charges for people who've never used drugs, much less carried them around in their cars.

The current faulty drug test debacle isn't likely to generate as much sympathy or result in wide-ranging investigations of drug testing tech. These drug tests are negatively affecting people who are already locked up, which isn't quite as disturbing as minor moving violations escalating into felony drug charges.

But it's still disturbing, even if it isn't taking innocent people off the streets. Documents leaked to Gothamist show hundreds of inmates have been subjected to harsher punishments, extended sentences, and loss of privileges thanks to drug tests corrections officials knew were unreliable.

New York state corrections officials believe that approximately 2,000 prisoners were subject to a flawed drug test that produced false positives and led to increased punishment across the state, according to documents obtained by WNYC/Gothamist.

The problem may have been caused by a chemical mishap known as "cross reactivity," which can lead to a clean subject falsely appearing to have used drugs, the documents say.

Roughly 300 prisoners were affected at the Fishkill Correctional Facility alone, according to a staff memo.

In one case reported by the New York Daily News, an inmate in a drug treatment program saw his time in the New York correctional system turned into a complete nightmare by inaccurate drug tests.

Anthony Cortes was in school at New York’s Willard Correctional Facility’s drug treatment campus in early March when he got called for a routine drug test.

[O]fficials told him the test came back positive for Buprenorphine, a medication commonly prescribed to treat opioid addiction. He was booted from Willard’s program, transferred to Five Points Correctional Facility and thrown into solitary confinement. A second drug test in April came back with the same results and more time in isolation.

Yet by mid-September — following nearly 200 days in solitary and four and a half months after his scheduled release — officials realized they had made a grave error.

Cortes is now suing the state over its use of faulty drug tests and the deleterious effect it had on his incarceration. Cortes isn't the only one suing over these tests. Courthouse News Service reports a class action lawsuit has been filed on behalf of an unknown number of inmates who have been punished for "failing" faulty drug tests.

[Nazeda] Steele-Warrick, who lives in Queens, filed a federal class action Wednesday against two diagnostic companies whose drug tests she says produced false positives, leading to punishment for inmates who were in fact clean. The 36-year-old former inmate sued Delaware-based Microgenics Corporation, which makes clinical diagnostic products, and Thermo Fisher Scientific, which manufactured the urine-analysis drug tests.

According to Warrick's lawsuit [PDF], the state's Department of Corrections later confirmed the test results jailers used to strip her of privileges were erroneous. But before that happened, this happened:

Individuals assigned to keeplock have limited access to their property, packages, telephones, correspondence, and visitors, and their commissary privileges are suspended, pending a disciplinary determination.

Ms. Steele-Warrick felt tremendous shame and humiliation as she was marched away in handcuffs past her peers and friends.

Unlike her private room, which had a door she could self-close and open, Ms. Steele-Warrick’s keeplock cell was behind locked and secured steel bars. The room had only a locker, sink, and toilet. It did not have the night stand, radio, or closet that Ms. Steele-Warrick had in her private room. Her meals were delivered through a “feed-up slot” in the bars.

Ms. Steele-Warrick did not have access to any of her belongings in her keeplock cell. Her first day there, she could not access her toothbrush, shampoo, or soap. Although she eventually obtained those items, she did not have any of her other personal belongings, including her books or magazines.

While Ms. Steele-Warrick was confined in keeplock, correction officers emptied out her private room, searching and cataloguing all of her personal belongings and securing away most of it in storage.

A package of food from Ms. Steele-Warrick’s husband arrived while she was in keeplock, and correction officers confiscated all the fresh vegetables and produce, later leaving Ms. Steele-Warrick with only a couple of canned items.

The false positive also had the potential to disrupt Warrick's immigration proceedings, which relied on her being able to demonstrate she was not dangerous person in order to continue living with her family. It also caused her to be cut off from her family when her visitation rights were revoked.

This isn't new and this isn't limited to New York. Prisoners in Washington have filed enough complaints the Department of Corrections is finally allowing challenged test results to be retested. And in 2013, New York's top court gave a probationer permission to sue drug testing equipment manufacturers directly for the faulty drug test that resulted in the revocation of his release.

Meanwhile, drug testing equipment aimed at visitors to correctional facilities are generating false positives that punish both inmates and their families.

The ion scanners devices are designed to detect trace amounts of particles. Correctional Service Canada has placed these devices in the lobbies and mailrooms of some of its prisons in a bid to reduce the flow of drugs into its facilities.

The devices are extremely sensitive, and MOMS [Mothers Offering Mutual Support] says in its petition that the scanners set off false positive readings at an "alarming" rate.

Anne Cattral, whose son is incarcerated at Ontario's Warkworth Institution, said she has lost count of the times she has tested positive for morphine, hash, opium and heroin. She follows a rigorous regime of washing, cleansing coins and jewelry and driving with plastic gloves before visiting the prison to limit the chances of a false reading.

Cattral said a positive test can lead to the visit being denied. It is also recorded on an offender's file, affecting future private family visits, transfers, and parole, she said.

It may well be the country's correctional services know they're working with unreliable equipment. But the best kind of deniability is the plausible kind.

[CSC spokesperson Esther Mailhot] said CSC does not collect data on false positives in testing.

Yeah. You don't want to be doing that. That only helps litigants suing the CSC and does nothing at all for CSC officials who don't like to be sued.

It's your word against theirs (the government's) out in the free world. Once you're incarcerated, you pretty much don't even have your word any more. If someone convicted on drug charges tests positive for drugs, everyone just assumes everything is working correctly, even if it actually isn't. Maybe these lawsuits will alter this assumption just a tiny bit.

Filed Under: accuracy, drug tests, junk science, prisons

Man Spends Three Months In Jail Because A Drug Dog And A Field Test Said His Honey Was Methamphetamines

from the another-godawful-trek-through-the-criminal-justice-system dept

Another field drug test has managed to misidentify a common legal substance. This doesn't matter to the government, which is only out ~$2. But it does matter to the non-criminals being treated like criminals because the ultra-faulty tests are even worse than K-9s at detecting actual drugs.

Field drug tests have determined everything from cotton candy to donut crumbs to drywall dust to bird poop (on the hood of a car no less!) to be illegal substances, resulting in a cascade of horrors on the innocent, starting with the arrest and criminal charges, and proceeding directly to indefinite pretrial detention and the loss of income, housing, etc. that comes with it.

Field drug tests are more "reliable" than drug dogs. I mean, to the extent that they'll more reliably generate the "probable cause" needed to search a car or arrest a person. If you're looking to boost your drug war stats, nothing's more useful than a cheap kit that can't tell the difference between narcotics and common household items.

Adding to the pathetic annals of cops upending people's lives with unreliable tests is this new twist: they're using these at ports-of-entry as well. A legal resident of the US spent three months in jail because the field test couldn't differentiate between a product created by bees and a product created by amateur chemists in a trailer park bathtub. (h/t Jeff Bonner)

After landing at Baltimore-Washington International Thurgood Marshall Airport on 29 December at around 10pm, US Customs and Border Protection detained [Leon] Haughton for more than two hours before Maryland Transportation Authority Police put him in handcuffs, according to charging documents.

The bottles with gold-coloured screw tops labelled “honey” in his bag, they told him, had tested positive in a drug field test for methamphetamine.

Mr Haughton fainted. Police took him to a hospital. Then they took him to jail.

Leon Haughton is a Jamaican man with a green card. He's a legal permanent resident of the US. He often picks up honey from Jamaica during his frequent visits and brings some back for friends and family members. This time he was greeted by Customs and a drug dog. The drug dog was also unable to differentiate between honey and drugs. Having been wrong once, Customs agents decided to be wrong twice. Incapable of thinking for themselves, they let a dog and a packet of iffy chemicals declare Haughton to be a drug dealer carrying a large amount of liquid drugs.

The two erroneous results (dog, field test) were negated three weeks later when the drug lab determined the honey wasn't actually methamphetamines. Unfortunately, the wheels of justice grind slowly. The felony charges were dropped a little less than a month after Haughton was arrested. All of that time Haughton spent behind bars.

Why? Because the wheels of justice go completely off the rails once ICE gets involved. Haughton was a green card holder and that fact led ICE to issue a detainer. This screwed everything up. The detainer prevented Haughton from being released, even though a judge had cleared Haughton to be freed until his trial date. When his second bail hearing came up, he again asked to be released. The judge wanted to but the detention order possibly meant nothing more than a change of jails for Haughton.

Mr Haughton asked to be released on 24 January at his second bail review, but Anne Arundel County District Court judge Laura Robinson worried he would not appear for trial.

“The problem is I can’t let him go to ICE [Immigration and Customs Enforcement] because he would be deported potentially,” the judge said, according to a recording of the hearing. “Even if I released you, you still wouldn’t necessarily be released. You would go into federal detention.”

Haughton tried again to be released on February 5th. His lawyer pointed out the detainer was based on pending felony charges, all of which had been dropped by prosecutors. Again, the judge could do nothing. Due to the government shutdown, no one from ICE was fielding calls about dropping detainers. Since no one was available to pull the order, Haughton went back to jail.

The other hangup was the locals. Because a drug dog and field test had incorrectly determined Haughton's honey to be meth, prosecutors were still hanging on to a single misdemeanor charge. This was despite the initial lab test showing the honey was just honey. It wasn't until a second test came back with negative results that the state finally decided to drop the remaining charge. Once all the charges were gone, ICE finally decided to drop the detainer --one solely predicated on charges the state had dropped nearly two months earlier.

Sure, field drug tests do occasionally detect actual drugs. But the miss rate is too high to legitimately consider them to be the "probable" part of "probable cause." They'll never be abandoned because they're too useful. They create easy arrests and easy prosecutions. Cops like drug busts and prosecutors love anything that might result in a quick plea deal. Given the choice between an indefinite stay in jail awaiting trial and a relatively painless deal with lesser charges, even innocent people will choose the option that gives them more immediate freedom. The government sees nothing but wins when it uses cheap, unreliable tests. All it sees is the occasional error that has zero effect on itself or its personnel.

Filed Under: drug dogs, drug tests, field tests, honey, meth, police

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

Woman Sues Georgia Deputies After Their Field Drug Test Said Her Cotton Candy Was Meth

from the lazy-people-relying-on-stupid-tools dept

Cops love cheap field drug tests because they're cheap and as likely to generate "probable cause" for an arrest/search as their much more expensive drug dogs. No law enforcement agency has ever expressed concerns about these fields tests returning false positives at an alarming rate. They just book people and send them before a judge based on a $2 test that can find anything from drywall powder to doughnut crumbs to be controlled substances. This void in accountability has occasionally been filled by prosecutors, a few of which will not offer or accept plea deals based on nothing more than a field test.

A faulty drug test is at the center of a recently-filed lawsuit. Georgia resident Dasha Fincher is suing Monroe County and two sheriff's deputies over a field drug test that turned cotton candy into methamphetamines and upended her life. (via the Atlanta Journal-Constitution)

According to Fincher's complaint [PDF], she was stopped for a supposed window tint violation by Monroe County deputies Allen Henderson and Cody Maples. Ultimately, the deputies decided the tint on her windows was lawful. But that obviously wasn't the real reason for the stop. The deputies wanted to search the vehicle. According to their report [PDF] of the incident, consent was given by both the driver and Fincher, who was the passenger in the vehicle. Deputy Williams found a "blue crystal like substance" in a bag on the floor. Both the driver and Fincher told the deputy it was cotton candy. The deputies tested it with a field kit, which conveniently confirmed their suspicions.

Based on the packaging and its crystal like feature, Corporal Williams tested the substance using a field kit for Methamphetamine and MDMA. The field kit gave a positive reading.

Here's a picture of the alleged methamphetamine:

Fincher was charged with drug trafficking, a felony that comes with mandatory minimum sentences and hefty fines. Since the drug hadn't been tested at a lab yet, the deputy's guesswork on its weight put Fincher in line for a minimum ten year prison sentence and a fine of $100,000. Bail was set at $1 million, so Fincher had no choice but to remain in jail until the substance was tested by the state's drug lab.

When those results came back, Fincher was cleared. Not only that, but the amount recorded by the lab (26 grams) fell short of the 28 grams needed to charge Fincher with trafficking. But by the time Fincher's innocence was proven, a tremendous amount of damage had been done. Fincher spent three months in jail, missing the birth of her twin grandsons and being unable to help when her daughter suffered a miscarriage. Her charges were dropped April 18, 2017, 109 days after she was arrested. The felony arrest remains on her record.

The lawsuit argues the deputies operated in bad faith, knowing high bail would be set and Fincher would remain in jail until the substance was tested by a lab. She argues they should have known the field tests routinely generated false positives. And there's evidence to back that claim. This report, broadcast last month by a Fox affiliate in Georgia, shows the Georgia Bureau of Investigation's (GBI) crime lab has reversed dozens of field drug test results.

The FOX 5 I-Team obtained every negative drug test report from the GBI Crime Lab in 2017, then researched to find out how many of those cases began with a positive NIK test. We confirmed 145 false positives, wrongly implicating Georgians of all races in all parts of our state. The field tests got it wrong 11 times for heroin, 24 times for ecstasy, 40 times for cocaine and 64 times for methamphetamines.

In each case, someone's life was upended. Georgia's drug laws are harsh and bail amounts are unaffordable for all but the most wealthy. About the only positive resulting from this examination is the Georgia Tech University's police force deciding they'd no longer use field tests. Across the rest of the state, this option hasn't even been considered by law enforcement agencies utilizing the NIK tests.

It may take a lot of lawsuits like this one to push law enforcement agencies to consider quality over quantity. Judges need to be made aware of these problems as well, since they're the ones who can reduce bail, allow releases pending trial, and shut down guilty pleas predicated on tests that are wrong far too often to be considered reliable.

Filed Under: cotton candy, dasha fincher, drug tests, field drug tests, forensics, georgia, meth, monroe county, police, probable cause

Faulty Field Tests And Overblown Drug Raid Claims: The War On Drugs In Clay County, Florida

from the serving-and-press-conferencing dept

Yet another Florida sheriff with a penchant for publicity is using his office (and manpower) to start some garbage viral War on Drugs. Hence, every bust made by his department -- utilizing armored vehicles and deputies that look like they shop at military surplus stores -- is splashed across the department's Facebook page. Fine, if that's what gets your blood flowing, but these scenes of busts, featuring the Sheriff front and center, contain claims that just aren't backed up by the actual paperwork. George Joseph of The Appeal has the details.

The video finds Sheriff [Darryl] Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.”

Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office.

At best, maybe five will be going to jail. The sheriff depicts this as a raid on a "narcotics house" targeting opioids. The records obtained by The Appeal show no opioids were found during the raid. Four of the five adults were arrested for marijuana possession. The fifth was charged with MDMA and cocaine possession. But chances are those drugs might vanish along with the nonexistent opioids Sheriff Daniels proudly proclaims were taken out of circulation.

Note the line about the field drug tests performed. These have already been proven bogus. A sheriff's office spokesman informed The Appeal that the 1.2 grams of heroin and fentanyl seized during the raid turned out not be opioids after being lab-tested. But the field tests told Sheriff Daniels everything he wanted to hear.

The reliance on cheap, terrible drug field tests is part of Sheriff Daniels' drug-raiding tradition. Arrests and seizures sound great when you're dragging a camera through someone's house for a Facebook video, but when nothing holds up in court, you're left with an empty charade using citizens as clickbait.

A former deputy contacted by The Appeal points out that cheap drug tests are just another tool for abusive police work.

“The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.”

This same former deputy also pointed out the marijuana charges were trumped up. According to reports, 35 grams of marijuana were seized during the raid, but somehow two people are being charged with possession of more than 20 grams.

Cheap tests, cheap vicarious thrills, and a whole lot of hype over drug charges that will likely dissipate into minimal punishment (if anything) once the lab tests arrive. That's how America's drug warriors roll. Sheriff Daniels rolls a little harder than most, but that's because tough-on-crime sheriffs are newscaster favorites. As The Appeal points out, Daniels has leveraged these videos to appear on national news networks and say ridiculous things like he's planning to treat all drug overdoses as homicides.

This report points out some very unpleasant things about our war on drugs. Law enforcement officials may claim to recognize drug addiction as a sickness, but they're still far more interested in rounding up users than dealers. Faulty field drug tests allow officials to exaggerate their successes (and misrepresent the amount of dangerous drugs in the community), when not allowing them to perform searches they otherwise wouldn't have probable cause to perform. They're part permission slip, part unpaid PR rep. And this constant failure of field drug tests to accurately identify drugs gets ignored but local media, for the most part, isn't willing to follow up on high-profile drug raids to correct the record. And it keeps working because many Americans love the image of "tough on drugs" officers kicking in doors and waving guns around. But, far too often, "tough" just means dumb, brutish, and unconstitutional.

Filed Under: darryl daniels, drug tests, field tests, florida, war on drugs

Prosecutors Looking Into $2 Field Drug Tests After Investigation, Figure Defense Attorneys Should Do All The Work

from the THIS-NEEDS-TO-BE-FIXED...-by-other-people dept

The fallout from cheap field drug tests continues. The lab that does actual testing of seized substances for the Las Vegas PD had previously expressed its doubts about the field tests' reliability, but nothing changed. Officers continued to use the tests and defendants continued to enter into plea bargains based on questionable evidence.

The Las Vegas PD knew the tests were highly fallible. After all, the department had signed off on a report saying as much and handed it into the DOJ in exchange for federal grant money. But cops still used them and prosecutors still relied on them when pursuing convictions.

Nothing changed until ProPublica stepped in with its own investigation into the faulty drug tests. In response to this reporting, prosecutors are finally taking a closer look at the tests officers deploy hundreds of times a year.

The Clark County District Attorney’s Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office’s routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable.

Unfortunately, this initial move is being handled poorly. Rather than have its prosecutors reexamine any cases relying on field-tested evidence, the DA's office is dumping the workload on already-burdened public defenders.

Daniel Silverstein, head of the newly formed unit, in November asked a statewide organization of defense lawyers for any information they had on cases that might have involved inaccurate field tests, and thus resulted in potentially wrongful convictions.

This isn't the defense attorneys' problem. While they're definitely interested in a solution, the wrongful convictions were pursued by the DA's office and its attorneys should be the ones looking for convictions that might need to be overturned. The DA's office has more resources and it is the entity that chose to continue pursuing cases against citizens based on nothing more than unreliable $2 test kits.

Howard Brooks, the Clark County Public Defender’s appellate director, called the district attorney request to defense attorneys “an absurd challenge.” Brooks argued it is the duty of prosecutors to verify the integrity of their convictions — both those that have already been won and those being brokered today in Clark County courts.

Then there's the fact that this examination process won't end up reversing many convictions. As ProPublica points out, seized evidence is routinely destroyed after convictions are obtained. And while lab tests are run on seized substances, that only happens if everyone coordinates to run the samples through as soon as possible. This is something that almost never happens.

Prosecutors routinely delay crime lab analysis to check results of field tests until the eve of trial, court records show. When defendants plead guilty at preliminary hearings, the alleged drugs rarely even reach the lab. In Clark County last year, according to court data, just eight of 4,633 drug convictions went to trial.

Add to that the fact that the PD itself has never tracked the failure rate of its field drug tests, despite having access to this data. It may have signed off on a damning report, but its discoveries about the tests' fallibility changed nothing about its day-to-day business. The drug tests remained in use by the police department and were treated as unquestionable evidence by the DA's office when pushing for plea deals.

About the only immediate positive result of this investigation is the higher bar prosecutors will have to clear before admitting field drug test results as evidence. The state's public defenders are planning to challenge every field drug test submission during evidentiary hearings. Of course, this assumes the judicial process will even make it this far.

For many of the accused, accepting plea deals nets them shorter sentences and a slightly less-awful future than going to trial might. Defendants often accept deals just to avoid actual jail time. On the prosecution scorecard, it still counts as a win. As a bonus, additional evidence possibly pointing to the field tests' abysmal accuracy rate vanishes, allowing cops, prosecutors, and sympathetic judges to continue lying to themselves about the tests' accuracy.

Filed Under: $2 field tests, doj, drug tests, evidence, las vegas pd, nevada

Las Vegas PD Continues To Use Faulty $2 Drug Field Tests Because Convictions Matter More Than Justice

from the drug-warriors-gotta-drug-war dept

The War on Drugs has never really been about eradicating illegal drugs. It's been about putting up numbers: seizures, busts, indictments, convictions. A steady flow of illegal drugs into the country ensures a steady flow of tax dollars into hundreds of government agencies. Officials talk a lot about taking down cartels, but they spend more time grabbing cash from travelers and anything they can from someone who's got nothing more on them than quantities that could be generously called "personal use."

Making law enforcement's Drug War "efforts" easier and a whole lot cheaper are field drug tests: notoriously unreliable chemical cocktails that are worth every cent of $2/per they pay for them. In an earlier story about these tests, two New York Times journalists detailed Amy Albritton's experience. Albritton spent three weeks in jail after a false positive from a field drug test determined that the caffeine-and-aspirin "crumb" (roughly the size of a "grain of salt" according to the lab test) was crack cocaine. For $2, Albritton lost most of her life. She served her short sentence -- one she only obtained by pleading guilty -- and now faces a future where her permanent record shows she's a convicted felon.

ProPublica is also tackling the issue of cheap, unreliable field tests -- ones deemed just reliable enough to cost people their lives. The Las Vegas Police Department's own crime lab found the field tests used by officers to be so inaccurate they actually lobbied to have their use discontinued.

In a 2014 report that Las Vegas police submitted to the U.S. Department of Justice under the terms of a federal grant, the lab detailed how the kits produced false positives. Legal substances sometimes create the same colors as illegal drugs. Officers conducting the tests, lab officials acknowledged, misinterpreted results. New technology was available — and clearly needed to protect against wrongful convictions.

The lab's opinion didn't matter. Cops and prosecutors loved the field tests. It ensured a steady flow of busts and convictions.

Yet to this day, the kits remain in everyday use in Las Vegas. In 2015, the police department made some 5,000 arrests for drug offenses, and the local courts churned out 4,600 drug convictions, nearly three-quarters of them relying on field test results, according to an analysis of police and court data. Indeed, the department has expanded the use of the kits, adding heroin to the list of illegal drugs the tests can be used to detect.

And while the drug lab that bats cleanup for field tests found them unreliable, these findings have never been passed on to the people who matter: judges. Not that it appears to matter. ProPublica brought its findings to the chief judge of the Las Vegas District Court only to receive a shrug in response.

“These are tests that have been accepted for years,” said Bonaventure, who became a judge in 2004. “They’re not being challenged.”

In other words, the police have told me they're reliable so they must be reliable. Otherwise, why would so many people plead guilty to possession?

Perhaps it's because someone pleading out to avoid a longer prison sentence is engaged in arbitrage -- weighing the potential years they could be facing if their bid fails against a quicker in-and-out local jail sentence that makes the immediate future look a bit brighter than the alternative.

Phil Kohn, chief of the Las Vegas public defender’s office, acknowledged that the prospect of serious prison time has the effect of strong-arming pleas.

“If you’re wondering why the public defender is pleading these cases, it’s because the alternative is horrific,” Kohn said.

In Las Vegas, only eight of the 4,633 drug convictions were the result of a trial. The rest were plea deals. And that's where the reliance of faulty field tests turns into the blackest of human comedies. If someone pleads guilty, the evidence that possibly isn't simply vanishes.

While DOJ standards for the last 40 years have called for qualified labs to re-examine all field test results, the agency has made no effort to insist that happens or to install other protections against mistakes and the wrongful convictions that could result.

And the destruction of field tests after guilty pleas is hardly limited to Las Vegas. In some jurisdictions, defendants accepting guilty pleas agree as a term of the arrangement that the evidence against them will be destroyed. In others, the alleged evidence is simply discarded over time. In a 2013 federal survey of local and state crime labs, 62 percent reported that police agencies don’t submit suspected drugs when a defendant pleads guilty early on in the process.

To make matters worse, ProPublica found public defenders haven't done much to challenge the use of unreliable fields tests. A 2000 report covering the Las Vegas public defender's office showed some lawyers hadn't filed a motion to suppress "in over five years." While the quality of representation has gotten better over the years, follow-up reports still found a dearth of aggressive defense. Of course, like almost every other public defender's office in the US, Las Vegas's is overworked and underfunded, with each attorney saddled with 200+ active cases at any given time.

Adding to the plea bargain problem (and exacerbating the troubling reliance on faulty field tests) are local laws, which are far harsher than federal drug laws. It only takes four grams of an alleged illegal substance to bring trafficking charges. At the federal level, it takes anywhere from 50-500 grams (depending on the substance) to trigger trafficking charges and their lengthier potential sentences.

Even though the Las Vegas lab had expressed concern about the fallibility of field drug tests, it never did anything to determine an error rate. When concerns were raised again about these cheap but error-prone tests, the lab's main concern wasn't about innocent people being jailed, but that it did not have the capacity to perform testing on all seized substances.

But judges and cops will keep believing field drug tests are reliable. And why wouldn't they? A demonstration in 2015 pretty much proved them infallible. But the test was rigged. First off, the demonstration involved an actual scientist, rather than a more error-prone officer. Second, the scientist demonstrating the reliability of the tests knew beforehand the substance he was "testing" was actually heroin… thanks to a lab test. The demonstration was presented as being tests of seized, but unknown, substances. As ProPublica points out, no false positives resulted because there was no possible way for the demonstrator to do so.

Meanwhile, the Las Vegas Police has upped the ante on a broken testing system, adding heroin to the list of substances it supposedly can detect using a $2 test. And nearly every crumb of undetermined origin will just add another case to overloaded public defenders. But the important thing is that it will add another drug bust -- and quite possibly another successful prosecution -- to Las Vegas drug warriors' stats. And that's all that really matters.

Filed Under: drug tests, drug war, forensics, las vegas, police

Field Drug Tests: The $2 Tool That Can Destroy Lives

from the life-is-cheap dept

It only takes $2 and a few minutes to ruin someone's life. Field tests for drugs are notoriously unreliable and yet they're still considered to be evidence enough to deprive someone of their freedom and start a chain of events that could easily end in joblessness and/or homelessness.

Ryan Gabrielson and Topher Sanders -- writing for the New York Times magazine -- take a detailed look at these field tests, filtered through the experience of Amy Albritton, who spent 21 days in jail thanks to a false positive.

A traffic stop that resulted in a vehicle search turned up an empty syringe and a "suspicious" crumb of something on the floor. The field test said it was crack cocaine. Albritton was taken to a county jail where she spent the next three weeks after pleading guilty to possession, rather than face a trial and a possible sentence of two years.

The crumb of whatever had been sent on to a lab for verification, but with Albritton's guilty plea, there was no hurry to ensure the substance retrieved from Albritton's car was actually illegal. In fact, with the case adjudicated and closed, the evidence could simply have been destroyed. It wasn't. Long after Albritton had been released, the substance was tested.

On Feb. 23, 2011 — five months after Albritton completed her sentence and returned home as a felon — one of Houston’s forensic scientists, Ahtavea Barker, pulled the envelope up to her bench. It contained the crumb, the powder and the still-unexplained syringe. First she weighed everything. The syringe had too little residue on it even to test. It was just a syringe. The remainder of the “white chunk substance” that Officer Helms had tested positive with his field kit as crack cocaine totaled 0.0134 grams, Barker wrote on the examination sheet, about the same as a tiny pinch of salt.

[...]

The powder was a combination of aspirin and caffeine — the ingredients in BC Powder, the over-the-counter painkiller, as Albritton had insisted.

[...]

The crumb’s fragmentation pattern did not match that of cocaine, or any other compound in the lab’s extensive database. It was not a drug. It did not contain anything mixed with drugs. It was a crumb — food debris, perhaps. Barker wrote “N.A.M.” on the spectrum printout, “no acceptable match,” and then added another set of letters: “N.C.S.” No controlled substance identified.

Albritton was innocent, but with a guilty plea, she now had a criminal record. And three weeks in jail turned her life upside down.

Albritton had managed the Frances Place Apartments, a well-maintained brick complex, for two years, and a free apartment was part of her compensation. But as far as the company knew, Albritton had abandoned her job and her home. She was fired, and her furniture and other belongings were put out on the side of the road. “So I lost all that,” she says.

[...]

Albritton gave up trying to convince people otherwise. She focused instead on Landon [her son]. Using a wheelchair, he needed regular sessions of physical and occupational therapy, and Albritton’s career managing the rental complex had been an ideal fit, providing a free home that kept her close to her son while she was at work, and allowing her the flexibility to ferry him to his appointments. But now, because of her new felony criminal record, which showed up immediately in background checks, she couldn’t even land an interview at another apartment complex. With a felony conviction, she couldn’t be approved as a renter either.

As the authors point out, 90% of jurisdictions will allow prosecutors to accept a guilty plea based on nothing more than highly-unreliable field test results. The test used in Albritton's case contains a chemical that turns blue when exposed to cocaine. Unfortunately, it also turns blue when exposed to 80 other legal substances, including acne medicine and household cleaners.

The tests are about as accurate as you'd expect for a $2 test. Differences in ambient temperature can affect test results, as can the alteration of the order in which the three tubes in each test are used. A positive field test is still a long way from being a credible indication of an illegal substance.

In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014.

But they're just good enough to destroy lives.

Fortunately, the article reports a few positive developments. Some people who have pled guilty to possession charges based on field tests have had their convictions overturned when lab tests come back clean. This is after the fact -- sometimes years after the fact -- so it does little to undo the damage already done.

In addition to only allowing someone who's life has been drastically altered to maybe finally make some forward progress, this sort of thing is limited only to those jurisdictions where crime labs are required to test every incoming sample, whether or not a conviction has already been obtained. Very few labs have this requirement. The standard M.O. is to simply destroy "unneeded" evidence if the case has been closed.

The most immediate fix would be to discard the faulty tests and develop something far more precise for field testing. But until that occurs, it seems unlikely law enforcement will abandon a product that allows officers to develop probable cause for drug possession arrests. A more immediate route towards ensuring few wrongful convictions would be to institute a requirement that all field-tested substances be tested by a lab before the prosecution can move forward. Otherwise, the system is basically convicting people on suspicion, rather than actual guilt.

In the county where Albritton was arrested, this change has been made.

Last year, Devon Anderson, the current Harris County district attorney, prohibited plea deals in drug-possession cases before the lab has issued a report.

That's still not enough to prevent the accused's world from falling apart while waiting for a lab test.

The labs issue reports in about two weeks, but defendants typically wait three weeks before they can see a judge — enough time to lose a job, lose an apartment, lose everything.

But it's still better than the alternative: doing nothing. Since this policy was implemented, dismissals are up 31% in the county, thanks to lab tests showing substances seized were not illegal.

Filed Under: accuracy, arrests, drug tests, field drug tests, police