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* Pro Publica estimates that at least 100,000 people every year plead guilty to drug-possession charges which rely on inexpensive (often two dollars each) police field-test results as evidence…
Police officers arrest more than 1.2 million people a year in the United States on charges of illegal drug possession. Field tests like the one Officer Helms used in front of Amy Albritton help them move quickly from suspicion to conviction. But the kits — which cost about $2 each and have changed little since 1973 — are far from reliable.
The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumb on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question — but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street — flashing police lights, sun glare, street lamps — often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.
There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. 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. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.
No central agency regulates the manufacture or sale of the tests, and no comprehensive records are kept about their use. In the late 1960s, crime labs outfitted investigators with mobile chemistry sets, including small plastic test tubes and bottles of chemical reagents that reacted with certain drugs by changing colors, more or less on the same principle as a home pregnancy test. But the reagents contained strong acids that leaked and burned the investigators. In 1973, the same year that Richard Nixon formally established the Drug Enforcement Administration, declaring “an all-out global war on the drug menace,” a pair of California inventors patented a “disposable comparison detector kit.” It was far simpler, just a glass vial or vials inside a plastic pouch. Open the pouch, add the compound to be tested, seal the pouch, break open the vials and watch the colors change. The field tests, convenient and imbued with an aura of scientific infallibility, were ordered by police departments across the country. In a 1974 study, however, the National Bureau of Standards warned that the kits “should not be used as sole evidence for the identification of a narcotic or drug of abuse.” Police officers were not chemists, and chemists themselves had long ago stopped relying on color tests, preferring more reliable mass spectrographs. By 1978, the Department of Justice had determined that field tests “should not be used for evidential purposes,” and the field tests in use today remain inadmissible at trial in nearly every jurisdiction; instead, prosecutors must present a secondary lab test using more reliable methods.
But this has proved to be a meaningless prohibition. Most drug cases in the United States are decided well before they reach trial, by the far more informal process of plea bargaining. In 2011, RTI International, a nonprofit research group based in North Carolina, found that prosecutors in nine of 10 jurisdictions it surveyed nationwide accepted guilty pleas based solely on the results of field tests, and in our own reporting, we confirmed that prosecutors or judges accept plea deals on that same basis in Atlanta, Boston, Dallas, Jacksonville, Las Vegas, Los Angeles, Newark, Philadelphia, Phoenix, Salt Lake City, San Diego, Seattle and Tampa.
* I asked the Illinois State Police for comment…
Hi Rich,
The ISP utilizes field test kits (similar to the illustration in the attached link you sent) to aid in establishing probable cause for arrest by detecting the possible presence of narcotics. Field test kit results are considered presumptive. The ISP laboratory utilizes scientifically validated methods for confirmatory testing of specimens to determine the presence of narcotics in submitted evidence.
* I asked what “presumptive” meant, exactly. The spokesman pointed me to this passage in a policies and procedures manual…
Involvement in the criminal justice system begins with an alleged violation of state criminal law or local or municipal ordinance. Individuals can enter police custody in different ways. A police officer may directly observe a violation of the law or ordinance or may be called to investigate a report of a possible crime. In either case, when a police officer determines that he or she has probable cause to believe an individual committed a criminal act, he or she can take that person into custody. Even with probable cause, a police officer may choose to release the individual and continue an investigation into the alleged offense. A police officer has discretion, limited by the police department’s policy, regarding what action he or she takes.
So I then asked how often the lab checks those field tests, and what the rate of false positives is on those follow-uptests. I was asked to submit a FOIA. I will and will let you know what I learn.
*** UPDATE *** Sen. Don Harmon is also concerned about this issue and says he has already started looking into it. He texted me that there’s another problem with the tests: “The number of people held in Cook County Jail for almost a month and then released because of no probable cause is staggering. As is the associated cost of the taxpayer”…
We recently passed a bill to do a pilot program in Cook County, because all the other counties in the state are already using the field tests. Mike Z was the House sponsor.
The reason this is important is that people in Cook County are spending 20 to 30 days in jail, waiting for the results of the lab tests before even getting their probable cause hearing.
I’m concerned about the story regarding accuracy of the tests, and I’m already looking into it. But, at least in Cook County, I’m not sure that a false positive is worse than spending 20, 25, 30 days in jail only to have your case dismissed for no probable cause once you finally get your hearing. […]
In Cook, they won’t do the probable cause hearing without the lab results. Hence, the long wait in jail.
It’s also my understanding that judges are routinely throwing out small-amount cases, citing lack of probable cause, even when the field test or the lab test come back positive. apparently, it’s just not worth the time and effort to proceed. It’s like they’re viewing the 20 to 30 day stay in jail as the sentence already served.
posted by Rich Miller
Tuesday, Jul 12, 16 @ 10:18 am
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“I then asked how often the lab checks those field tests, and what the rate of false positives is on those follow-uptests. I was asked to submit a FOIA. I will and will let you know what I learn.”
Quis custodiet ipsos custodes?
A: CapFax.
– MrJM
Comment by @MisterJayEm Tuesday, Jul 12, 16 @ 10:24 am
From first hand experience over many years with lots of defendants, the ISP is the same as the rest! This coupled with long delays at ISP Forensic labs replicates this same situation in Illinois. Capital punishment, those without the capital get the punishment!
Comment by Old and In the Way Tuesday, Jul 12, 16 @ 10:33 am
Shhhh, you are about to blow (no pun intended) the lid off of a nice little scam the State has going.
Comment by Concerned Tuesday, Jul 12, 16 @ 10:39 am
Lot of money to be made in the War on Drugs — on the so-called enforcement side.
Those positive tests no doubt were parlayed into a lot of asset seizures as well.
Asset seizure reform seems to be on the back burner here in Illinois. I thought we had something going for a while. What happened?
Comment by wordslinger Tuesday, Jul 12, 16 @ 10:47 am
Also, “presumptive” is decidedly not the standard of proof required. Beyond a reasonable something. Beyond something doubt. Give me some time–it will come back to me.
Comment by Concerned Tuesday, Jul 12, 16 @ 10:50 am
==Also, “presumptive” is decidedly not the standard of proof required. Beyond a reasonable something. Beyond something doubt. Give me some time–it will come back to me.==
Perhaps you should start by researching the difference between standard needed to bring charges, and admit evidence, and standard to convict. Because you’re clearly confusing the two.
Comment by Anonymous Tuesday, Jul 12, 16 @ 10:53 am
== I was asked to submit a FOIA. ==
Why, oh why. It is public information. Just release it.
=== Quis custodiet ipsos custodes? ===
LOL.
It’s why we are here, MisterJayEm. Why we are all here.
- Juvenal
Comment by Juvenal Tuesday, Jul 12, 16 @ 10:54 am
Once Rich gets the FOIAed ISP data, the next question is how maany cases based upon false positives are resolved by a guilty plea?? Does ISP pursue the confirmation test if the accused cops the plea?
Comment by anon Tuesday, Jul 12, 16 @ 11:08 am
This is where statistics training comes into play. Say you have only a 1% of false positives. 100,000 tests are given and the rate of actual drug use is 5% (5000 actual users). 95000 tests will be given to non drug users, and 1% of those will be false positive. That’s 950 false positives, or a 16% chance that a positive test out of 100,000 appliations is inaccurate.
Comment by NoGifts Tuesday, Jul 12, 16 @ 11:09 am
Rich, make sure the chemicals you use to clean your car are drug free. /s
Comment by Mama Tuesday, Jul 12, 16 @ 11:12 am
“But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners.”
Does anyone have a list of those other 80 compounds which are not illegal drugs, but will test positive for illegal drugs with the police road test?
Comment by Mama Tuesday, Jul 12, 16 @ 11:17 am
==Involvement in the criminal justice system begins with an alleged violation of state criminal law or local or municipal ordinance==
The war on drugs isn’t so much a war as it is a shakedown in many municipalities that classify possession as an ordinance.
Impoundment of the vehicle, and fines (in one IL City- $500.00 for less that 2.5 grams of weed) coupled with fines for the papers/pipe makes this a profitable enterprise for the municipalities.
Way past time for legalization. Way past time for the media to shine the spotlight on the ordinance and forfeiture racket going on across the state.
Comment by lost in translation Tuesday, Jul 12, 16 @ 11:21 am
“Way past time for legalization.”
All drugs, some drugs (if so which ones)?
Personal use of small amounts of marijuana ( as with alcool be careful out there while driving) should be a non issue. However, there are many other drugs that bother the H E L L out of me and should everyone.
Regardless these are state and not federal issues where the law should be decided. However, the 10th Amendment seems to play little role in judicial decisions today.
Comment by Federalist Tuesday, Jul 12, 16 @ 11:34 am
–It’s also my understanding that judges are routinely throwing out small-amount cases, citing lack of probable cause, even when the field test or the lab test come back positive. apparently, it’s just not worth the time and effort to proceed. It’s like they’re viewing the 20 to 30 day stay in jail as the sentence already served. –
Why are these people being arrested in the first place? Is it just a convenient charge to get them off the street?
Comment by wordslinger Tuesday, Jul 12, 16 @ 11:44 am
==I’m concerned about the story regarding accuracy of the tests, and I’m already looking into it. But, at least in Cook County, I’m not sure that a false positive is worse than spending 20, 25, 30 days in jail only to have your case dismissed for no probable cause once you finally get your hearing. […]==
Sen. Don Harmon, I have to disagree with you. If one gets a false positive, they will spend a lot more than 20 - 30 days in jail - it will be more like 3- 6 years in prison.
Comment by Mama Tuesday, Jul 12, 16 @ 11:52 am
“I’m concerned about the story regarding accuracy of the tests, and I’m already looking into it.”
Sen. Don Harmon, thank you for looking into false positive testing.
Comment by Mama Tuesday, Jul 12, 16 @ 11:54 am
I am a Conservative and want the Government out of my life. If I want to use drugs, in my own, its my own business.
If I get behind the wheel of a car, or hop on my bicycle….then the Government has every right to intervene and protect the public safety.
Just like its not the Governments business who I marry or what bathroom I use.
Comment by Brian VanDorfen Tuesday, Jul 12, 16 @ 12:01 pm
*should read: in my own home.
Comment by Brian VanDorfen Tuesday, Jul 12, 16 @ 12:02 pm
make drug
posession a misdemenaor and a fine. problem solved. woild also deescalate encounters w police if people know the worst case is a ticket
Comment by Ghost Tuesday, Jul 12, 16 @ 12:03 pm
Sheriff Dart frequently complains about the large number inmates at Cook County Jail who are locked up for a few weeks (because they can’t pay bond) only to be released when the charges are dropped during a preliminary hearing. He’s pushed a couple of “Rocket Docket” bills to quickly move those cases through the system.
I could be wrong, but I don’t think any police officers in Cook County field tests drugs at the time of arrest right now. They lock up the suspect based on the officer’s belief that the substance is an actual illegal narcotic and then wait for the lab results — which are used in the probable cause hearing within 30 days to determine if the case should move forward. So there’s a good chance the percentage of suspects unjustly locked up in Cook County is even higher than in the cities Pro Publica examined. Harmon’s bill would pilot field tests in Cook County for the first time. As Pro Publica points out, field tests aren’t very reliable. But they are better than no field test.
The real problem is the high bonds judges set in Cook County.
Comment by RTR Tuesday, Jul 12, 16 @ 12:06 pm
I am surprised that this issue is surfacing now. It must have been recognized as a problem years ago. My first thought was that somebody would have developed a better test since 1973. Then I realized that the market is small (1.2 million arrests at $2 per test kit is less than $3 million per year). There was little financial incentive to develop a better test.
Now that the issue has surfaced, we can clearly do better. Spending some money on a better field test and upgrading and staffing the State Police Lab to quickly do confirmation tests would be money well spent.
Comment by Anonymous Tuesday, Jul 12, 16 @ 12:29 pm
I can only hope that this test is a lot better than some seem to think it is. If not, we need to develop aa solid test and use it in such a manner that we can determine who is impaired when driving on the road.
Comment by Federalist Tuesday, Jul 12, 16 @ 12:33 pm
I concur with Senator Harmon. The testimony in hearings on these tests was a bright line– they are reliable to a legal degree necessary (as determined by the Illinois Supreme Court) to enforce the arrest or determine the substance is or isn’t illegal for a preliminary hearing but not at trial, thereby negating what was then and is probably less so to a degree now a non-efficient outcome–waiting on the field test to come back while the defendant waits in CCDOC, sometimes unnecessarily.
Also reminder HB356 was designed as a pilot program, that is to use data taken from the program to see if the process works. We’ll know soon enough if we are getting the outcomes we expect and hope for for a more efficient judicial process in Cook County.
Comment by Rep Mike Z Tuesday, Jul 12, 16 @ 12:35 pm
The focus on the testing is a missing the forest for the trees. the problem is making certain drugs illegal and locking people up. Prohibition does not work. and the legal opaites are far more dangerous and addictive. legalize it or make it a minor crime. its time t repeal prohibition and save hundreds of millions of dollars in a war that tends to mostly hit the lower income people
Comment by Ghost Tuesday, Jul 12, 16 @ 12:37 pm
Sorry. 12:29 was me. Computer is not automatically adding handle.
Comment by Last Bull Moose Tuesday, Jul 12, 16 @ 12:37 pm
=== they are reliable to a legal degree necessary (as determined by the Illinois Supreme Court) to enforce the arrest ===
What does “reliable to a legal degree necessary” mean?
Because 33% false positives does not seem very reliable to me.
Comment by Juvenal Tuesday, Jul 12, 16 @ 1:00 pm
Radar and field sobriety tests aren’t reliable, either. If you really dig you will find that everyone on the inside knows those tests are squirrelly, and they are happy to use them intimidate people into pleading out to some sort of charge because it makes their stats look good, even as they know they are getting false confessions from innocent people.
The whole system sucks, but fixing it would cost more money than people want to spend.
This is nationwide, not just in Illinois.
Comment by Harry Tuesday, Jul 12, 16 @ 1:04 pm
==Why, oh why. It is public information. Just release it.==
We don’t provide information without a FOIA. We use it to track requests.
Comment by Demoralized Tuesday, Jul 12, 16 @ 1:07 pm
Isn’t there a simple blood test that can tell if a person has used any illegal drugs?
Comment by Mama Tuesday, Jul 12, 16 @ 1:22 pm
–Juvenal–
I hadn’t heard that 33% statistic until Rich posted it. We’d always been told these tests could make a binary determination on the spot: yes, drugs, no not drugs to bolster a finding of probable cause, and that determination was ruled acceptable by the Illinois Supremes in People v Hagberg. And again, if the pilot data comes back and says too many times the test was off, we’ll know it’s not an effective way of deterring long stays in CCDOC. But I’m skeptical that will be the result.
Comment by Rep Mike Z Tuesday, Jul 12, 16 @ 2:39 pm
The Illinois Supreme Court already ruled that field tests are not proof beyond a reasonable doubt because filed tests only indicate a presumptive (or probable) presence of a drug and are not proof beyond a reasonable doubt which is the standard at trial (See People v. Hagberg).
Field tests can be used to determine whether there is probable cause to arrest or whether there is probable cause for a preliminary hearing as authorized under Mike Z’s bill). No one has ever said field tests are proof beyond a reasonable doubt but that is not what they are being used for.
The FOIA is not going to show anything because the police are the ones using the field test and the ISP lab has no clue whether a drug submitted for chemical analysis was subjected to field testing by the police. The lab does their own confirmatory analysis without regard to the field test results or even if a field test was done at all.
Comment by Old ASA Tuesday, Jul 12, 16 @ 4:22 pm
System Failures
The Houston cases shed light on a disturbing possibility: that wrongful convictions are most often not isolated acts of misconduct by the authorities but systemic breakdowns — among judges and prosecutors, defense lawyers and crime labs.
(See graphics by Fathom; 7/07/16)
https://www.propublica.org/article/chemical-field-test-wrongful-conviction-flowchart
Comment by Mama Tuesday, Jul 12, 16 @ 6:00 pm
Thanks Rich for posting this story here! I read it Sunday in The New York Times magazine, and it is horrifying.
I’m planning on sharing this with several police and judicial officials that I know, and ask them to prayerfully consider if these miscarriages of Justice are happening in their departments.
Comment by Lynn S. Tuesday, Jul 12, 16 @ 6:19 pm
Again, with a 1% failure rate, and assumed 50% actual drug users, the 50,000 our of 100,000 who are tested but are not users would produce 500 false positives.
Comment by NoGifts Tuesday, Jul 12, 16 @ 8:12 pm