It wasn't long before the Internet People christened Ross Lebeau the “Kitty Litter Kingpin.”
He had never even watched an episode of Breaking Bad before, he says — and yet on the afternoon of December 5, he found himself handcuffed, charged with possession of between 200 and 400 grams of methamphetamine as though he were a local Walter White.
Harris County sheriff's deputies had pulled him over for failure to use a turn signal, and, after smelling marijuana, searched the vehicle with Lebeau's consent. In the trunk, they found a black sock full of what they believed was a half a pound of meth — according to their trusty drug field tests, at least. “They were probably frothing at the mouth, thinking they were the cops of the century,” said Lebeau's attorney, George Reul III.
The Harris County Sheriff's Office trumpeted the bust in a press release as “another example how a routine traffic stop turned into a significant narcotics arrest in our community” and “may have kept our children and loved ones free from being introduced to drugs.” The local media plastered Lebeau's mugshot across the TV and the Internet. His neighbors and employer — a windshield repair company—took note, and soon Lebeau began losing contracts with the local car shops that hired him. After he bailed out of jail, his mom and stepfather almost kicked the 24-year-old out of the house, distressed over the fact that their otherwise quaint suburban home was now labeled a meth lab.
Lebeau tried to defend himself on social media, but it seemed everybody had already made up their minds. The suspected “meth” in the black sock, he explained, was actually just cat litter. He had forgotten that his father, who sold him the Acura, liked to put the cat-litter-sock in the car as a way to keep the windows from fogging up. Despite the fact that Lifehacker.com totally approves of this trick, his explanation was written off as a joke — that is, until prosecutors dropped the charges last week. Test results from the lab had come back, confirming what Lebeau already knew.
It was, in fact, just kitty litter.
“Building your reputation takes years,” Lebeau said. “One false positive can ruin all of that.”
The field tests cops used to arrest Lebeau are notorious for producing false positives, given the right combination of user error and chemical sensitivity. Officers are supposed to drop a pinch of the suspicious substance into a clear little baggie containing a liquid that changes colors based on what substance is present. But it doesn't always go so well: Everything from Jolly Ranchers and breath mints to motor oil and deodorant have tested positive as drugs in various jurisdictions. In Harris County, the manager of the Houston Forensic Science Center's controlled substance section, James Miller, said he has seen roach bait, Dry Right — for fixing water damage — and even sugar produce false positives using these field tests, which cost anywhere from $2 to $25. (You can even buy them on Amazon.)
Yet despite the possibility of fallible results, the tests are used likely hundreds of times each day across the country to arrest and jail suspected drug users.
Here in Harris County, over the past decade or so, nearly 300 people have been wrongly convicted of drug possession, with most cases stemming from problems with field tests. Presumably in order to get out of jail because they could not afford bail, those people instead pleaded guilty to possession — only for lab results to come back months or even years later proving their innocence. Public Defender Nick Hughes, who has worked with the Harris County District Attorney's Office to contact dozens of those wrongly convicted defendants, says the vast majority of them were arrested based on faulty field tests. Since 2015, the Harris County DA's office has stopped allowing prosecutors to offer plea deals to drug defendants until the lab results are known, resulting in a 31 percent increase in case dismissals, according to a recent analysis in The New York Times sparked by the arrest of a woman in Houston.
"That policy is absolutely fine if that's for someone out on bond who can get on with their life, but for somebody in jail, it doesn't take very long for all of these bad consequences to immediately take effect," Hughes said. "You can basically go in [to jail] with a job, with a family, with an apartment and a car, and then come out homeless and destitute."
Lebeau was one of the lucky ones. After he was arrested, his bail was originally set at $100,000 (because, of course, he was thought to be an actual kingpin), an untouchable amount for Lebeau. He stayed in jail for three days, two of which he was not even assigned a bed because the process for assigning inmates cells and pods was delayed, he said. He says he was fed only peanut butter sandwiches, and he began collecting the peanut butter and jelly packets to hustle them for other snacks from inmates who had access to commissary. On the first day, he had called his dad, a physician who knew an attorney, and explained how he got arrested for meth possession.
“He was like, that's cat litter!” Lebeau recalled. “I was like, dude, don't bail me out for $10,000 for cat litter. That's just crazy — that's the most expensive bag of cat litter ever. I was in shock. I didn't really know what to do, what to expect. I was embarrassed.”
The attorney his father called, George Reul, was quickly able to persuade a judge to lower Lebeau's bail to $50,000, and so he paid a $5,000 non-refundable fee to a bondsman in order to get out of jail. After seven out of his ten car-shop contractors had dumped him, Lebeau was making only $300 a week during Christmastime, which nearly ran him broke. “I had all these legal bills and attorney fees and bonds, and everything just hits you all at once,” he said. “I had no leg to stand on. I'm lucky to still have my job, but a lot of people aren't.”
Lebeau said he is hoping his story can raise awareness about the problem with these faulty field tests. But part of the problem is that, well, there is very little hard data out there indicating how big of a problem this really is, beyond what is already known about the hundreds of wrongful convictions they have likely produced. Otherwise, few studies have empirically sought to identify the estimated rate of false positives in field tests, or the likelihood that they will err.
Last July, The New York Times Magazine and ProPublica took one of the closest looks at the problem in a joint investigation, which highlighted the story of Amy Albritton, a single mom arrested by Houston cops and charged with possession of crack cocaine after a tiny white crumb they found in her car tested positive for crack. She has since been exonerated.
After review of thousands of court and police records across the nation, the news outlets estimated that about 100,000 people plead guilty to drug possession based on the field-test results every year. “At that volume, even the most modest of error rates could produce thousands of wrongful convictions,” the reporters wrote. They also reported that data from the Florida Department of Law Enforcement crime labs indicated that 21 percent of substances police identified as methamphetamine were in fact not meth, with half of those false positives not even being any drug at all. In some of those cases, the cops had simply misinterpreted the color changes in the field tests, they reported.
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James Miller at the Houston Forensic Science Center said the police's misinterpretation of the results is a likely contributor to false positives. It's even possible this happened in Lebeau's case: According to the offense report, the officer performing the first field test said the liquid turned “brown” when he introduced the cat litter — yet Miller says meth is present only if it turns orange first and then brown. Other factors affecting the validity of the test, Miller said, include whether the test is overheated (perhaps it has been sitting in a patrol car too long, he said) and the presence of chemicals such as those found in synthetic drugs like kush, which the tests were never designed to detect. The tests have been around since 1973, and as the Times reported, they have changed very little since then.
That's why the Timothy Cole Exoneration Review Commission is asking the Texas Forensic Science Center to closely examine drug field tests in order to help law enforcement and forensic scientists understand how they may be improved. In its annual report to Governor Greg Abbott, the commission highlighted Harris County's mounting pile of wrongful drug convictions as a reason why this research is needed.
In the meantime, Ross Lebeau says he is trying to clear his name by expunging his record — though he is not certain that will solve all of his problems. "Where do I get back my reputation?” he said. “When I search my name online, I still come up as a kitty litter kingpin.”
Correction, January 10, 9:18 a.m.: An earlier version of this article misstated that the Houston Forensic Science Center tested the kitty litter.