by Matthew Clarke
In the summer of 2017, the Houston Police Department announced that it was ending its longstanding practice of using $2 field test kits for drugs that had frequently been used to persuade defendants to plead guilty—even when they were innocent.
In December 2016, the Timothy Cole Exoneration Review Committee, which was created by the Texas Legislature in 2015, issued its final report. The report called the use of inexpensive drug field tests “a significant concern” due to their “questionable reliability.” In Houston alone, the crime lab discovered over 300 drug convictions based on a positive field test of a substance that turned out not to be a drug at all. Former Houston Police Chief Charles McClelland told the Houston Chronicle, “I don’t think any law enforcement agency in America should be doing this anymore.”
The known unreliability of the tests prompted Portland, Oregon to require lab confirmation before guilty pleas can be entered. Despite the widespread knowledge that the tests are unreliable and many factually innocent people have been convicted based upon them, many jurisdictions continue to permit prosecutors to use the tests to obtain guilty pleas even without confirmation by lab testing.
The drug field tests require an officer to place a suspected substance into a pouch of chemicals and look for changes in the color of the chemicals to indicate whether the substance is cocaine, methamphetamine, marijuana, or another controlled substance. But police officers often have little or no training on how use the kits, which results in frequent false positives for the presence of drugs. Crime labs rarely recheck the substance if a defendant pleads guilty, and many defendants plead guilty even when factually innocent.
But inaccurate test results and hundreds of wrongful convictions are not what moved the Houston Police Department to abandon the unreliable field testing; rather, officer safety was what finally prompted the department to abandon them.
In 2016, the federal Drug Enforcement Agency warned local police departments that fentanyl, an opioid often sold as a street drug, is toxic even in amounts too small to be seen. Inhaling small amounts of fentanyl or getting it into a small cut on the skin can be fatal. In May 2017, an Ohio police officer collapsed and was hospitalized after touching fentanyl while brushing off his uniform with his bare hand. The Houston Police Department, which recovered three kilos of fentanyl in one 2017 seizure, decided it was too dangerous to have police officers hande suspected drug samples.
“That’s quite a few doses, lethal doses, of this pretty bad substance,” said Houston Police Chief Art Acevedo, announcing the department’s abandonment of field testing. He also noted that the even more potent opioid carfentanil had been discovered in a drug evidence sample.
Acevedo said officers would rely on their “expertise” when making future drug arrests, noting that they have “a wealth of training and experience into what narcotics look like, what they feel like in terms of packaging, the color, the appearance.”
Eliminating the use of the field tests, however, is not a panacea for wrongful drug arrests and convictions. Harris County’s chief public defender acknowledged that the field tests were erratic and unreliable, but relying on an officer’s observations when making a drug arrest decision might produce even more wrongful convictions because defendants—the guilty and innocent alike—are often faced with a choice between pleading guilty and being released on probation immediately or waiting weeks or months in jail awaiting crime lab results.
Sources: www.chron.com, propublica.org, txcourts.gov
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