For years, narcotics field tests have been notorious for sending innocent people to jail. The cheap, roadside tests have misconstrued everything from Jolly Ranchers for meth to Pop-Tart crumbs for crack cocaine. In December, the Harris County Sheriff's Office trumpeted the arrest of 24-year-old Ross Lebeau for felony meth possession — only for the substance, stuffed inside a black sock in his trunk, to turn out to be cat litter. His dad had used the cat-litter-sock as a trick to defog the windows.
“Building your reputation takes years,” Lebeau told the Houston Press in January. “One false positive can ruin all of that.”
Now, however, in a departure from standard police practice across the nation, Houston and Harris County law enforcement agencies will permanently stop using the narcotics field tests, effective immediately.
At a press conference Friday, the Houston Police Department, the Harris County Sheriff's Office, the Harris County District Attorney's Office and several other local agencies acknowledged the faulty nature of the tests. But the decision to discontinue them doesn't stem from their unreliability. Houston Police Chief Art Acevedo said the reason was for officer and first-responder safety: Lately, an extremely deadly opioid called fentanyl has been circulating the streets — and even coming into contact with a morsel of the drug for roadside testing can put an officer's life at risk, Acevedo said. In Ohio, a police officer testing fentanyl recently overdosed and nearly died after flicking a speck of the drug off his uniform during a roadside test.
"We've taken these precautions because nothing is more important to us than the safety of the men and women that we have a privilege to serve and lead with," Acevedo said. "The last thing we want to do is end up in the hospital in the middle of the night, or, God forbid, have to knock on the door of one of our employees because their loved one has died as a result of being exposed to this extremely dangerous drug."
Dr. Peter Stout of the Houston Forensic Science Center said that a fatal dose of fentanyl is just two milligrams. Over the past couple of months, the Houston Police Department and the Pasadena Police Department have collectively seized 11 kilograms of the drug — which Stout said is more than 5.5 million fatal doses. "That's two Houstons," he said.
But while the field tests certainly had their flaws, the question now is how exactly officers will go about arresting people for suspected drug possession.
Acevedo said the old trope that if it "looks like a duck and quacks like a duck..." applies just as well to dope, and that officers will use their "wealth of training and experience" to make arrests. Harris County District Attorney Kim Ogg said that, in the past, the field-test results were used as evidence for probable cause for someone's arrest, but that all drugs are formally tested by the crime lab before anyone can be convicted. The main change, Ogg said, is whether a judge believes there is enough evidence to hold someone in jail based on the officer's testimony before that lab test can confirm his suspicion.
People can't plead guilty, either, before those results come back. That's a policy the previous DA's office administration enacted after dozens of innocent people, presumably too poor to bail out, pleaded guilty to drug possession in the 2000s in order to get out of jail, only for lab results to come back months or even years later proving their innocence. So far, the DA's office has uncovered 319 wrongful convictions of this kind and is still working on finding more.
Still, on the flip side of that policy, if an officer's "training and experience" about what he thinks are drugs turns out to be wrong, a person who can't afford bail could be sitting in jail for roughly 11 days before the formal lab tests come back. That's the average turnaround time for narcotics testing at the crime lab, Dr. Stout said.
"A person, no matter how qualified, is a less accurate predictor of whether something is a controlled substance than a commercial test," Chief Public Defender Alex Bunin said. "That means more persons will be unnecessarily arrested, charged and jailed, and will remain under prosecution until a laboratory can exonerate them and their case be dismissed."
Bunin said it would be wise to prohibit police from arresting people when only small quantities of suspected drugs are involved. If formal lab results confirm the substances are drugs, then the police can get a warrant and arrest the person later. Acevedo said that this would be possible in cases where officers had any doubt about whether the crumbs they found in the car really were cocaine, for example, but said this was the "exception, not the rule."
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Ogg added that the DA's office policy on "trace cases," involving a minuscule amount of drug residue left in a pipe or film in a baggie, for example, is currently under review. The end to the prosecution of these types of cases — which had been highly controversial at the height of the war on drugs — was part of Ogg's campaign last year.
"I think courts are becoming more skeptical of the existence of probable cause for arrests in such cases, with or without a field test," she said. "They cost our taxpayers millions of dollars to prosecute. Juries often don't support convictions for an amount of drugs that even the offender may not have known he possessed. And we often dismiss those cases where we can't prove that the offender knew that the film in the bag or whatever's left in the pipe is still drugs."
Ogg said to expect "movement" on any potential policy changes in the coming weeks. It would only add to a growing number of drug reforms that she, Acevedo and Harris County Sheriff Ed Gonzalez have agreed to collectively, including the end to prosecuting misdemeanor marijuana cases, offering an educational class instead of criminal charges.
As for the end to using narcotics field tests, however, whether it's for better or for worse will remain to be seen.