How to Test Drugs (Again)

[Whenever I can’t come up with a catchy title for a topic I’ve already covered a thousand times, I simply add the word “again”, or “part 2” or “revisited”. I first wrote about this topic in July of 2012, in “How to Weigh Drugs in a Trafficking Case“.]

We need experts to tell us how to do anything more complicated than finger counting. Some of this expert testimony is simple, and necessary if we want to keep our government in check (police work is only easy in a police state, right?). One of the more common cast of characters to appear on behalf of the State in drug cases are FDLE’s lab chemists. The good news is, most of these folks are fully capable of putting drugs into a machine, and reading the results to a jury–much in the way a Wal-Mart cashier scans your products and tells you how much they cost. Unfortunately, not all of these folks truly understand how their machines regurgitate test results; and when you ask them to explain the science, they give a look reminiscent of a dumbfounded Ben Stiller in Zoolander. A classic comedy, for sure, but not something that should be remotely similar to expert scientific testimony. Anyway, some lab analysts simply do not follow the most basic of scientific tasks. Today’s simple scientific task involves testing a controlled substance before weighing it. Weight is important. The weight of a substance can mean the difference between a lengthy prison sentence, and a probation sentence.

So, again, it is with great joy that I bring you a case in which our government cannot handle the most basic scientific procedure.

In Greenwade v. State, the defendant was convicted of trafficking in cocaine after nine one ounce baggies containing a white powder were discovered pursuant to a home search warrant. 124 So. 3d 215 (Fla. 2013). The police conducted their standard “field tests” of the nine baggies, and then poured each baggie into nine separate envelopes. You with me so far? Yes, this is a bit like street corner 3-card Monte, so watch carefully. But, by the time the white powdery substance arrived at FDLE to be tested by a chemist, there was only one big baggie containing 234.5 grams of cocaine. For those of you unfamiliar with cocaine trafficking (probably 98% of you?), possessing 200-400 grams of cocaine carries a 7 year minimum mandatory sentence. Greenwade was found guilty, and given a 15 year prison sentence, 7 of which was a minimum mandatory sentence.

The issue on appeal was simple, in that the State destroyed Greenwade’s ability to challenge the contents of all nine baggies “because the State had combined, tested, and weighed the contents of all the nine individual baggies found in his possession together instead of chemically testing each baggie for cocaine before commingling and weighing their contents.” Id. at 218. Other courts have ruled that this sort of law enforcement behavior is improper, and each baggie must be tested separately “to prevent law enforcement from combining and weighing the contents of bags that are similar in appearance, but do not contain controlled substances, with bags that do contain controlled substances”. Id at 219. Now, you don’t think law enforcement would do such a thing, do you? (So, we could blame the cops, rather than the lab chemists, but I prefer to blame both.)

The lower courts denied Greenwade’s motion to dismiss this trafficking charge. In the lower courts, the State successfully argued that the surrounding circumstances gave the jury enough evidence to conclude all nine baggies contained cocaine (Greenwade admitted that the baggies, in general, contained cocaine, and all nine baggies field tested positive for cocaine). The issue becomes, is the State required to individually test white powdery substances found in separate baggies? Such a ruling would pertain not just to cocaine, but also heroin and methamphetamines, as they too are white and powdery. Other cases out there have found that, for example, the State need not test 139 separate baggies of crack cocaine, because there are plenty of substances that are white and powdery–but not much out there resembles crack cocaine (Bond v. State, 538 So. 2d 499, 500 (Fla. 3d DCA 1989)).

Florida’s appellate courts have come down on both sides of the issue of testing and weighing substances together, or apart. Of course, I’ve been saying for years that these things must be tested separately, not for any other reason than the knowledge that some of my clients aren’t completely honest about the contents of these baggies. Some of my clients do, in fact, mix in a little counterfeit substances with the real stuff. I know, shocking.

Anyway, our Florida Supreme Court has decided, once and for all, that white powdery substances in different baggies must be tested separately. The problem with putting all of the baggies together for testing is that this “process of commingling creates an unjustifiably high risk that noncontrolled substances will be inappropriately mixed with controlled substances. Once multiple packets of individually wrapped powder are commingled before they are chemically tested, the simple process of commingling irreversibly destroys both the independent chemical composition of each individually wrapped packet and the ability to discern whether the pre-commingled substance was controlled or counterfeit. . . In effect, by commingling before testing each individually wrapped packet, the State can eliminate any possibility of discovering whether one or more of the individual packets contained a noncontrolled substance, while simultaneously increasing the probability that a defendant will be charged with trafficking in a higher amount than would have been possible if the State had individually tested each packet.” Id. at 229.

Now, before you jump to the conclusion that all baggies must be tested individually, don’t go there. That’s not what the court is saying, they’re only saying that such testing procedures apply “when the substance discovered is one that poses an identifiable danger of misidentification, such as the white powder discovered in this case. If the chemical composition of the substance seized does not pose a danger of misidentification, the State is not required to chemically test individually wrapped packets.” Justice Canady dissented on this opinion, quoting a lower court’s reasoning that “it seems to me, as it must have to the jury, eminently reasonable to conclude that the material in the packet randomly selected from each of the two bundles was representative and characteristic of the other ones, which were otherwise identical in every way”. Id. at 231.

So, that’s how you test drugs. Tell your scientists not to pour everything into one baggie, and in the meantime, I’ll probably write another couple of articles about how this simple rule continues to be ignored. Part 4, coming in 2015, trust me.